Willis v. State ( 1960 )

DAVIDSON, Judge,

dissenting.

I am of the opinion that the bills of exception appearing in this record should be considered.

The notice of appeal in this case was given on November 18, 1959. The bills of exception were filed January 26, 1960, or sixty-eight days after the notice of appeal was given and within the ninety-day period allowed.

The bills of exception do not appear to have been filed with the clerk of the court prior to being presented to or acted upon by the trial judge, as authorized by the act (Art. 760d V.A.C.C.P., as amended), but were filed on the same day and after the trial judge had acted thereon by qualifying the bills of exception. As a part of the qualification, the fact that the defendant excepted to the qualification was noted by the judge.

So here is a case where the bills of exception were qualified by the trial court over the objection and exception of the appellant and were filed within the time required by law.

When the trial court noted the exception to the qualification, the bills stood approved without qualification. Such has long been the rule. McPherson v. State, 161 Tex. Cr. R. 181, 275 S.W. 2d 685; Hemmeline v. State, 166 Tex. Cr. Rep. 458, 314 S.W. 2d 833; Butler v. State, 165 Tex. Cr. Rep. 30, 302 S.W. 2d 142; Phillips v. State, 163 Tex. Cr. R. 13, 288 S.W. 2d 775; Poskey v. State, 160 Tex. Cr. R. 577, 273 S.W. 2d 424.

So when the trial court noted appellant’s exception to his qualification he approved the bills of exception, as such, without qualification.

It must be remembered that all this occurred and the trial court approved the bills of exception, without qualification, prior to the time the bills were filed with the clerk of the trial court.

Consequently, when the bills of exception were actually filed with the clerk they had been approved by the trial court without qualification, and within the time required by law.

If such be not the proper construction, then inasmuch as the bills of exception were filed by appellant with the clerk of the trial court and were not refused approval by the trial court, they must be considered as timely filed, under the provisions of the new statute.

When the legislature passed the new act, it did so charged with notice of the holdings of this court that a trial court’s qualification to a bill of exception is destroyed when the trial court certifies that the qualification was over the objection of the defendant and the bill of exception stands approved without qualification.

I find nothing in the new act which destroys that rule or evidences any intention on the part of the legislature to do so. In fact the new act makes express provision touching such a situation, for it is there said:

“Nothing in this Act shall prevent the defendant and the trial judge from agreeing upon or to the correctness of the bill of exception and the filing thereof in the trial court within ninety days from the date notice of appeal was given. Such a bill of exception shall be considered as approved by the trial judge.”

In refusing to consider the bills of exception, this court gives no effect to this provision of the statute which in my opinion has application here.

The bills of exception should be considered and, when considered, reversible error is reflected.

The Wortham and Willie cases, relied upon by the court as sustaining their conclusion, are wrong and ought to be overruled.

I respectfully dissent.