Thomas v. State, No. 22219.

• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas
• Writing for the Court: Hawkins
• Citation: 164 S.W.2d 852
• Parties: THOMAS v. STATE.
• Decision Date: 24 June 1942
• Docket Number: No. 22219.

Page 852

164 S.W.2d 852 THOMAS
v.
STATE. No. 22219. Court of Criminal Appeals of Texas. June 24, 1942. Rehearing Denied October 14, 1942.

Appeal from District Court, Lubbock County; Daniel A. Blair, Judge.

Sam Thomas was convicted of uttering a forged deed, and he appeals.

Affirmed.

Jimmie Cunningham, of Lubbock, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

HAWKINS, Presiding Judge.

Conviction is for uttering a forged deed, punishment assessed being twenty years in the penitentiary.

The indictment charged that appellant uttered, passed and used as true and genuine a forged deed by directing it to be filed and recorded in the office of the County Clerk of Lubbock County, Texas, appellant knowing the same to have been false and forged. The deed in question as described in the indictment purported to be a conveyance from Charles Rutherford of Swisher County, Texas, to Sam Thomas of Lubbock County, Texas, dated September 27, 1940, and purporting to have been acknowledged by Rutherford before J. E. Swelson, a Notary Public of Swisher County, Texas, on said 27th day of September, 1940.

The property conveyed in said deed was described as follows:

"First Tract: All of Lot No. Eleven (11), in Block No. One Hundred and Thirty seven (137) in the original town of Lubbock, Texas, according to the official Plat of said town,

"Second Tract: All of Lots Nos. Thirteen (13), Fourteen (14), Fifteen (15) and Sixteen (16) in Block No. Twenty-eight (28), in the Overton Addition to the City of Lubbock, Texas, according to the official Plat of said Addition."

The case was tried at the February, 1942, term of court in Lubbock County. The motion for new trial was overruled on March 16. No extension of time, other than the 30 days given by statute, (Art. 760, C.C.P.1925, Vernon's Ann.C.C.P. art. 760), was requested or granted at the time the motion was overruled. The trial term of court did not extend more than eight weeks, hence the 30 days' statutory time was from the day of adjournment, which occurred on March 21.

Appellant seeks to have the judgment of conviction reversed and remanded on the

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claim that he has been deprived of a statement of facts and bills of exception without fault on his part or that of his attorney, but because of the death of the court reporter who officiated at the trial.

On April 28 appellant filed a request for an extension of time in which to file bills of exception and statement of facts, setting up that he had on April 16 requested the court reporter to prepare a statement of facts and a transcript of the proceedings showing appellant's objections to the admission or rejection of testimony during the trial, in order that appellant might prepare his bills of exception, but that the court reporter had become ill and had not been able to comply with appellant's request. On April 29 the trial court undertook to extend the time for ninety days from the day of final judgment. It will be observed that 38 days from the date of the adjournment of court and 43 days from the date of overruling the motion for new trial had expired before any request for an extension was presented to the trial judge. His power to extend the time expired after the lapse of the 30 days' statutory time. Any order of extension to be effective must have been made within the 30 day period. See Griffin v. State, 59 Tex. Cr.R. 424, 128 S.W. 1134; Armstrong v. State, 60 Tex.Cr.R. 59, 130 S.W. 1011; Samples v. State, 80 Tex.Cr.R. 418, 190 S. W. 486; Tanner v. State, 127 Tex.Cr.R. 69, 74 S.W.2d 981. Many other cases will be found cited in Note 44 under Art. 760, Vol. 3, Vernon's C.C.P., and in the Cumulative Annual Pocket Part in said volume, under said article and note. We think appellant is in no position to claim that he has been deprived of bills of exception where he waited 30 days after his motion for new trial was overruled to request a record from the court reporter, and then failed to request an extension order until the time had expired when such order could be effective.

Appellant also claims that he has been deprived of a statement of facts. A statement of facts, if filed within 90 days, was in time without an extension order. Art. 760, C.C.P. Appellant files in this court an affidavit of his attorney stating that he undertook to dictate to his stenographer a narrative statement of facts, and directed that when transcribed it be delivered to the district attorney; that appellant's attorney admits that such statement of facts was not a full, true and correct statement and would be unjust to both the State and appellant if placed in the record, and that said attorney would not be willing to swear that such is a fair record of what the evidence showed; that the district attorney refused to...