Wales v. State , 85 Tex. Crim. 391 ( 1919 )

On a previous day of the term the judgment herein was reversed. The Assistant Attorney General has filed a motion for rehearing, and suggests that the statement of facts should not be considered. The reason for this proposition is found in the fact that the statement of facts was attached to and not incorporated in the transcript. The Assistant Attorney General bases his motion on the case of Carney v. State, 63 Tex.Crim. Rep.. As a matter of fact, the statement of facts was attached to and made a part of the transcript, but not included in the record correctly speaking. We observed the condition of the record before handing down the opinion and at the time of writing it. The writer did not consider this as a reason why the statement of facts could not be considered since the rendition of the case of Gribble v. State, 210 S.W. Rep., 215. In the Gribble case Judge Lattimore reviewed the matter, not particularly with reference to whether the statement of facts should be embodied in the record or sent up separately, but overruled that line of decisions which held that the recent stenographic Act of the Legislature did not apply to misdemeanors. The Carney case, supra, and a lot of other cases, grew out of the same statute, which the opinion in the Gribble case holds was repealed, and for that reason the writer did not take into consideration the fact that the trasncript did not contain the statement of facts. To meet the objection of the Attorney General, however, appellant has filed a corrected transcript which does embody the statement of facts. An inspection of the statement of facts contained in the transcript shows that it is identical with that which was attached to it and upon which the opinion was based. It is, therefore, deemed unnecessary to review the questions or re-state the matters forming the basis of reversal. On the former opinion the motion for rehearing will be overruled.

Overruled.