Webb v. State

• Decision Date: 29 February 1928
• Docket Number: (No. 11393.)
• Citation: 4 S.W.2d 45
• Parties: WEBB v. STATE.
• Court: Texas Court of Criminal Appeals

4 S.W.2d 45

WEBB v. STATE.

(No. 11393.)

Court of Criminal Appeals of Texas.

February 29, 1928.

Rehearing Denied April 4, 1928.

Appellant's Application for Leave to File Second Motion for Rehearing.

Commissioners' Decision.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

O. W. Webb was convicted of robbery with firearms, and he appeals. Affirmed.

J. W. Culwell and Works & Bassett, all of Amarillo, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Offense, robbery with firearms; penalty, ten years in the penitentiary.

None of appellant's bills of exception were filed within the time provided by law, and no question is presented for review except the sufficiency of the evidence. This, in our opinion, being sufficient to support the verdict of the jury, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

Effort is made in connection with appellant's motion to show excusing cause for failure to have his bills of exception filed within time. We have considered the affidavits appended to the motion, viz., of the trial judge, the district clerk, and counsel for the appellant, together with the original bills which also accompany the motion, but regret that we are unable to conclude same show cause sufficient to excuse said failure. The motion for new trial was overruled July 2d and an order made allowing 80 days from said date in which to file bills of exception, which time expired September 20th. The bills were filed October 1st, ten days too late. The clerk's affidavit attached to this motion shows that he filed the bills the day they were brought to him, but he does not remember who brought same. The affidavit of the judge shows that he has no independent recollection of when said bills were presented to him, nor when same were approved, nor to whom he delivered them after approval. Appellant's attorney makes affidavit that he delivered said bills to the court on September 14th, and that only twice thereafter (date not given) did he speak to the court about them, on each of which occasions the court told him he had not approved them but would do so and file them with the clerk. The bills of exception appear to have been approved on September 15th; in fact, the original bills considered with the affidavits accompanying the motion present a strange situation. Examination of said bills shows that four of them were approved on September 30th, and one on September 27th, the entry of such approval being in ink and in the handwriting of the trial judge. At some time, evidently after the entry of these dates, same were canceled by the drawing of lines through said dates, and the figure 15 was written in as the date of the approval. If in fact these bills were approved on the dates originally appearing, it would plainly manifest negligence on the part of appellant as having failed to follow up his bills and see that they were approved. We cannot understand or sanction such practice as the changes made in these bills indicate. If the bills were in fact approved on September 15th by the trial court, it would be inexcusable and neglect on the part of appellant to permit them to lie in the office of the trial judge for 16 days thereafter, before filing. Bills of exception under all our authorities must be followed up by those interested in having them filed. Merely turning them over to the judge and attempting to make him the agent of appellant for such filing is not...