White v. State, 18183.

• Decision Date: 29 April 1936
• Docket Number: No. 18183.,18183.
• Citation: 94 S.W.2d 167
• Parties: WHITE v. STATE.
• Court: Texas Court of Criminal Appeals

Page 167

94 S.W.2d 167

WHITE v. STATE.

No. 18183.

Court of Criminal Appeals of Texas.

April 29, 1936.

Appeal from District Court, Angelina County; C. E. Brazil, Judge.

A. J. White was convicted of theft of property over the value of $50, and he appeals.

Affirmed.

Sam H. Townsend and C. W. Falvey, both of Lufkin, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

HAWKINS, Judge.

Conviction is for theft of property over the value of $50, punishment assessed being two years in the penitentiary.

Notice of appeal was given on June 20, 1935. Subdivision 5, art. 760, C.C.P., allows consideration of a statement of facts filed within ninety days from the date the notice of appeal was given. The statement of facts here was not filed until ninety-five days after the notice of appeal.

The attorneys for appellant by affidavit make it appear that the delayed filing was no fault of appellant or the attorneys, hence same will be considered.

On the night of January 17, 1935, Woodie Cryer had an automobile stolen from him at Diboll in Angelina county. It was taken between 7 and 8 o'clock from in front of an auditorium where an entertainment was in progress. Grover Davis, an accomplice witness, makes out a case against appellant. Davis testified that he first saw appellant with the car about 8:30 upon the night in question; that he and appellant drove to Houston in the car, left it in the woods after removing the wheels and hiding them in the grass. The car and wheels were recovered by officers and delivered to Cryer who identified them as belonging to him. The corroboration of the accomplice witness was supplied by the testimony of Clarence Campbell and Mrs. Jordan. It is not necessary to set out same in detail, but it meets the requirements of article 718, C. C.P., as tending to connect appellant with the theft.

Bill of exception No. 1 complains of the action of the court in refusing a continuance. The bill was not presented to the trial judge for his approval until October 3d, and was not filed with the clerk until October 13th, some fifteen days after the time allowed. We observe no reason for delay in filing such bill within the ninety days granted by the court. Same will not be considered. The delay in securing the statement of facts could in no way have obstructed a prompt preparation and presentation of this bill.

Bill of exception No. 2 complains of misconduct of the jury in that it is claimed they received additional evidence after their retirement. For a number of reasons, this bill is not entitled to consideration. The delay in presenting...