Whitaker v. State

• Decision Date: 05 April 1911
• Citation: 136 S.W. 1072
• Parties: WHITAKER v. STATE.
• Court: Texas Court of Criminal Appeals

136 S.W. 1072

WHITAKER v. STATE.

Court of Criminal Appeals of Texas.

April 5, 1911.

On Motion for Rehearing, April 26, 1911.

Appeal from Donley County Court; J. H. O'Neall, Judge.

John A. Whitaker was convicted of a misdemeanor theft, and he appeals. Reversed and remanded.

Cooper, Merrill & Lumpkin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of a misdemeanor theft, having been tried in the county court.

There was an order entered by the court, allowing 30 days after the adjournment of the term in which to prepare a statement of facts and bills of exception. Before the expiration of the 30 days, appellant applied for and obtained an extension of time. The statement of facts and bills of exception were filed before the expiration of the extended time. The Assistant Attorney General insists that the statement of facts in this condition of the record cannot be considered, and we are of opinion that his contention is correct. The act of 1907 (Acts 30th Leg. c. 7) prescribes that 20 days shall be allowed after the adjournment of the term of the county court in which to prepare these papers, and that appeals from county courts are governed by that law, and not by the act of 1909 (Acts 31st Leg. c. 39, §§ 6, 7). The act of 1909 only relates to courts where official stenographers are employed, and not to county courts where they are not authorized by law to take down the testimony. In those courts where official stenographers are used, it was evidently the purpose of the law to extend sufficient time in which the statement of facts and bills of exception may be filed. Under that law the parties to the case cannot prepare the statement of facts, or at least the law proceeds upon the theory that, as the notes were taken stenographically, parties to the case are unprepared to make a statement of facts, and the stenographer is required to reduce the stenographic reports to narrative form, or put it in such language, at least, that the parties may be able to understand the report of the evidence and bills of exception. In other words, the law relieves the parties to the case from making out the statement of facts after they have been transcribed by the stenographer, and the extension of time beyond the 30 days was allowed because of the inability of the parties to transcribe the stenographic notes; but this rule does not apply to county courts. The responsibility of making out the statement of facts is upon the parties to the case, and not on the stenographer. Therefore the statement of facts will not be considered.

There were several special charges requested, as well as exceptions taken to the court's charge. The requested instructions were refused. We are of opinion the matters set out in bills of exception as being erroneous cannot be reviewed, in the absence of statement of facts, as they all pertain to matters sought to be brought before the jury by the special charges.

In the condition of the record, we are of opinion, therefore, no such error has been brought to the attention of the court that can be reviewed, and the judgment will be affirmed, and it is accordingly so ordered.

On Motion for Rehearing.

On a former day of this term, the judgment herein was affirmed without consideration of the statement of facts. That matter is sufficiently explained in the original opinion. Since the affirmance appellant has made a motion for a rehearing, asking a consideration of the facts, which we think is sufficient, and entitles him to a rehearing on the merits of his case.

The evidence shows that one of the alleged owners, Smith, sold appellant the place occupied by Smith, in Donley county. Appellant moved upon and took possession of the place. Smith vacated the place. When Smith moved his effects, he left what is termed in the statement of facts some "harvester aprons" or "canvases," stating to appellant that he was not ready to move them, and if it did not inconvenience him (appellant) that he would like to...