Wagoner v. State

• Decision Date: 04 October 1911
• Citation: 140 S.W. 339
• Parties: WAGONER v. STATE.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

140 S.W. 339

WAGONER v. STATE.^†

Court of Criminal Appeals of Texas.

October 4, 1911.

Appeal from Menard County Court; J. D. Scruggs, Judge.

G. H. Wagoner was convicted of swindling, and appeals. Affirmed.

S. C. Rowe, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

The appellant was indicted, tried, and convicted of swindling, a misdemeanor. The trial was had in the county court on July 7, 1910. There is no statement of facts copied in the record. However, there is with the papers what purports to be a statement of facts, which shows to have been filed in the lower court on August 12, 1910. There also appears in the record an order allowing, first, 30 days to file statement of facts and bills of exception, and then, later, an extension of even that time.

It has been uniformly held by this court that the county court in misdemeanor cases cannot grant a longer time than 20 days in which to file statements of facts and bills of exceptions, and that whatever statements of facts are filed within time must be copied in the record and made a part thereof, and not sent up as a separate part as is provided for in the stenographic act passed by the Legislature in felony cases tried in the district court. Mosher v. State, 136 S. W. 467; Looper v. State (two cases) 136 S. W. 791, 792; Nichols v. State, 55 Tex. Cr. R. 211, 115 S. W. 1196; Trinkle v. State, 57 Tex. Cr. R. 567, 123 S. W. 1114. So that in this case we cannot and do not consider the purported statement of facts.

There is, however, in the record a bill of exception, filed within time, complaining of the overruling of the motion to quash the indictment. The indictment is in substantial, if not literal, compliance with the approved form laid down in White's Annotated Penal Code 1895 under article 943, and is in accordance with the statute on the subject. So that the court did not err in overruling the motion to quash the indictment.

Complaint is made by other bills of exception, which were filed in time, of the charge of the court in several particulars. It has also been the uniform holding of this court that in misdemeanor cases this court cannot reverse on the charges given, unless excepted to, and correct charges asked by the appellant, and refused by the court at the time. Stennett v. State, 59 Tex. Cr. R. 262, 128 S. W. 616; Kosmoroski v. State, 59 Tex. Cr. R. 296, 127 S. W. 1056; Thurston v. State, 58 Tex. Cr. R. 308, 125 S. W. 31; Franklin v. State, 59 Tex. Cr....