Donohue v. State ( 1921 )

Appellant files a vigorous motion for rehearing. He insists that error was committed by the lower court in regard to his bill of exceptions No. 5, and that he was deprived of his complaint of hurtful argument of the prosecution in closing its case before the jury. Our discussion of this matter is not satisfactory to appellant. We have again carefully examined his affidavit in the light of this motion. The complaint in this regard does not come before us as a part of the transcript, and the purported bill of exceptions was not filed in the lower court but is here presented originally upon affidavit of appellant's counsel, to which is appended said bill of exceptions No. 5 discussed in the opinion herein. We might content ourselves by saying that the correctness of the court's action may not be made an issue when only controverted by the affidavit of appellant's attorney. Moore v. State, 47 Tex.Crim. Rep.. But as the question raised is of some importance as a matter of practice generally, we further discuss same.

In said affidavit it is stated that the bill of exceptions was presented to the trial court, and was returned to appellant's counsel with the following notation thereon:

"The foregoing bill of exception has been examined and the same is not allowed nor approved for the reason that no objection was made to the said argument and no exception taken to said argument, and no special request was made by counsel at the time for the court to charge the jury not to consider the said remarks of counsel. This the 8th day of July, 1921.

W.B. CLARK, Judge of County Court, Floyd County, Texas."

The affidavit then further states that affiant himself wrote on said bill the following:

"The foregoing bill was presented to the court by counsel for defendant, who insisted that same be filed as written, and that if refused the court file a proper bill showing all the facts connected with said argument complained of in said bill of exception.

W.B. CLARK, County Judge Floyd County, Texas,"

which at appellant's request was also signed by the trial judge. Said affidavit further states that appellant then took said bill back to his office, requesting the clerk of the court to notify him when any bill was filed by the court in lieu of the one so refused, and that no bill was filed by said court, and that appellant was thus deprived of his bill of exceptions as presented, and also of the privilege of obtaining a bystanders bill as provided by statute. As authority for his contention that he suffered injury which we can correct, appellant cites Jones v. State, 89 Tex.Crim. Rep., 229 S.W. Rep., 865. We think appellant misapprehends said authority. The case of Wilson v. State, 88 Tex.Crim. Rep., 224 S.W. Rep., 772, is almost exactly in point and is against appellant. It is difficult, if not impossible in discussing the law applicable to a given state of facts, to so state the principle involved as that other cases may not arise seemingly in conflict. Let us again state what seems a correct rule applicable to facts such as here appear.

In a given case a bill of exceptions is presented to the trial court; if merely incorrect, the proper course is indicated by article 2065, Vernon's Civil Statutes, wherein the trial court is directed to suggest proper corrections, which, if agreed to, the court may make, and the bill thus corrected shall be approved and filed. If the corrections suggested in such case, be not agreed to, it is directed in article 2066 of said Civil Statutes, that the court shall mark such bill refused and return is to the counsel, and said court shall then make out and file what he considers a bill of exceptions showing a correct presentation of the matter involved. When it is shown that a bill is so endorsed as refused, without explanation, and that no bill in lieu thereof has been filed by the court presenting what he considers to be a correct statement of appellant's complaint, this court will ordinarily hold that appellant has been deprived of his bill of exceptions, and will reverse and remand. Rosa v. State, 86 Tex.Crim. Rep.; Wilson v. State, supra.

In such case if the court proceeds to file what he considers a correct bill of exceptions, and appellant is dissatisfied therewith, he may proceed to have prepared and filed what is denominated a bystanders bill in accordance with the provisions of Article 2067 of said Civil Statutes, the supporting affidavits making an issue of fact, which being in the record will be for the determination of this court. However, as intimated in the opinion in the Wilson case, supra, it does not seem to have been in the mind of the Legislature or this court in former opinions, that a bill of exceptions will be presented complaining of a matter to which no exception had been taken. In such case, having endorsed on the bill presented him, that same is refused because no such exception was taken, what more could the trial court do? He could not prepare and file what he considered a proper bill of exceptions or any sort of a bill if in fact no exception was taken. If such fact be true, he has already endorsed on the purported bill all that he could say by filing any instrument of his own. In the absence of a statutory direction in such case, we suggest that if the accused desires to controvert such statement by the court that no exception was in fact taken, he may raise the issue in his motion for new trial and tender evidence in support thereof. This may be controverted by the State, and the evidence being presented and preserved as is other testimony heard upon such motions, may be brought here on appeal and by us determined as for or against the contention of the accused, and appropriate decision rendered if it appear that he has been deprived of a bill of exceptions in fact taken by him. This much is said in view of the possible arising of similar unfortunate controversy in future practice in other cases, and in view of the fact that in the Wilson case, supra, we stated that appellant accepted as true the endorsement that the bill was refused because no such exception was taken, and the contrary was not made to appear to us by any bystanders bill or other character of attack, except the affidavit of appellant's attorney. Reverting to the instant case, we observe that when the court endorsed on said bill his refusal of same because no such exception was taken, appellant seems to have made no further effort to get the matter into the record, but brings same here by direct affidavit of his attorney, which in no event would be sufficient to bring the matter before us. Moore v. State, and Wilson v. State, supra.

Appellant seems to be under the impression that the trial court should have in some way so certified that certain argument of the prosecution was indulged in, as that we might have such argument before us and decide whether same was inflammatory or not. Unless there was exception taken to the argument when made, the matter could not be considered by us. Subdivision 12, p. 533, Vernon's C.C.P., and collated authorities.

We have again reviewed appellant's bill of exceptions No. 4, but are unable to conclude that we erred in our decision regarding same. A number of remarks of the private prosecuting counsel appear to which objection was made in various ways and upon which no ruling was made by the court, and at the conclusion of all of said remarks appellant's attorney made the observation set forth in our opinion. We are not informed by the bill of exceptions so made up as to which of the remarks of the prosecution appellant finally desired to take his bill of exceptions. It is necessary in order to bring before this court for its consideration an objection, that it be sufficiently specific to enable this court to know at what same is directed.

Appellant further criticizes the opinion of the court because of its statement that the children of the prosecuting witness were not "at home" at the time of the occurrence. It seems that some of the smaller children of the prosecuting witness were about the premises and probably at a granary, and we should have more properly stated that they were not at the house at the time of the occurrence, which took place in the residence of prosecutrix.

Finding no matter set up in the motion which leads us to conclude that we were in error, same will be overruled.

Overruled.