Vickers v. State , 90 Tex. Crim. 609 ( 1921 )

The term of the District Court at which the appellant was tried adjourned May 13th. Ninety days thereafter were allowed in which to file the statement of facts. This extension ended on August 12th. The statement of facts was not filed until August 13th. It was in possession of appellant's counsel on August 5th. Appellant's counsel resided at Coleman, the district attorney at Brownwood. The towns were connected by railroad, and the distance thirty miles.

If it be granted that there was undue delay upon the part of the stenographer in preparing the statement of facts, it cannot be denied that it came to the possession of appellant's counsel six days before the law required it to be filed. The record is bare of facts to show that these six days were not ample within which, by the exercise of diligence, the document could have been authenticated and filed. It is not within the province of this court to arbitrarily extend the time within which the law permits the statement of facts to be filed. The law fixing the limit is binding alike upon the appellant, his counsel, and this court. The authority exists to prevent the accused who desires to appeal from suffering the consequences of misfortune which prevents his filing his papers in time, but the law demands of him diligence and gives this court no authority to relieve him from the consequences of his own laches. This is illustrated in the case of Riojas v. State, 36 Tex.Crim. Rep., in which the bill of exceptions reach the judge in time but was by him misplaced and not filed until after the time allowed by law had expired. The court said:

"While it seemingly was neglect on the part of the judge not to approve and file the bill of exceptions, it was the duty of counsel to follow up his bill, and see that it was approved by the judge during the term, and filed with the clerk. This is statutory. See George v. State, 25 Texas Crim. App., 229; Exon v. State, 33 Tex.Crim. Rep.."

This rule is emphasized by its repeated application and enforcement. See Richardson v. State, 71 Tex.Crim. Rep.; King v. State, 82 Tex.Crim. Rep.; Carpenter v. State,83 Tex. Crim. 87; Stanford v. State, 42 Tex. Crim. 343; Pollard v. State, 45 Tex.Crim. Rep.; Sullivan v. State, 62 Tex.Crim. Rep., and other examples might be cited.

The statement of counsel in his motion for rehearing that the accused is a youth whom the statement of facts shows to be innocent of the crime cannot fail to elicit sympathy. We have not read the statement of facts which the law forbids it to consider would amount fail to attract favorable attention of the branch of the government in whose hands is placed the beneficent power of clemency. For this court, upon such grounds, to arbitrarily annul the conviction upon statement of facts which the law forbids it to consider would amount to nothing less than a usurpation of authority.

We are constrained to overrule the motion, and it is so ordered.

Overruled.