Dobbs v. State , 54 Tex. Crim. 579 ( 1908 )

The report of the former appeal of this case is found in Dobbs v. State, 51 Tex.Crim. Rep.; 100 S.W. 946.

The court entered an order on request of appellant granting twenty days in which to prepare and file statement of facts and bills of exception. The record shows that bills of exceptions were filed on twenty-first of November, the court having adjourned on second day of same month. The statement of facts was agreed to and approved on the twentieth of November, but not filed until the twenty-eighth, which was some days beyond the time allowed for such filing. The assistant attorney-general suggests that said statement of facts can not be considered by reason of the fact it was filed more than twenty days beyond the time authorized for such filing. The Thirtieth Legislature authorized the filing of such statement of facts within thirty days. The language is as follows: "Each and every statement of facts to be filed in any case as provided for in this act shall be approved by the court and filed within thirty days after the final adjournment of the term of court at which such cause was tried." We are of opinion that the suggestion of the assistant attorney-general is well taken. Appellant could have obtained an order of thirty days but did not. The only authority for filing a statement of facts after the adjournment of the term of court is to be found in the order of the court authorizing such filing. If no order is entered, the statement of facts must be filed within term time. The statement of facts was approved on the twentieth of the month by the district judge, it having been on the same day agreed to by parties to the record. Why it was not filed before the twenty days expired in which to file the evidence is not shown. Having asked for only twenty days in which to file the evidence, and there being no order of the court authorizing it filed beyond that time, and no reason shown why it was not filed within the specified time granted, we believe the filing of the statement of facts subsequently was without authority. The statement of facts, therefore, will not be considered.

The first bill of exceptions relates to the action of the court refusing a second application for continuance. Several witnesses were mentioned, but it was shown they all appeared during the trial except one, by whom appellant expected to prove that he and his father had informed him (witness) they were going fishing, and which they proposed to connect by other testimony to the effect that they were in fact going fishing at the time they met deceased when the fatal difficulty occurred. This testimony may have been cumulative. If we consider the statement of facts it would be clearly so. Without the statement of facts, therefore, we are of opinion that the application is not in such condition as to require us to reverse the judgment on account of the loss of this testimony. There is enough perhaps within the bill of exceptions to show that this was cumulative, and the statement of the parties as to their purpose in going in the direction they were traveling at the time of the difficulty. The application for continuance and the bill fail to show that the evidence was not cumulative.

The second bill was reserved to the testimony of the witness Duke in regard to the purchase by appellant's father of some shells loaded with buckshot on the morning of and prior to the homicide in the evening, the theory being that there was no conspiracy shown, or at least not sufficient evidence introduced as a predicate for the conspiracy in order to admit the purchase of shells loaded with buckshot in the absence of defendant. This bill further shows, in this connection, the State had shown by John Davis, Milage Davis and George Davis each, certain statements and conversations made by the father of appellant, who was indicted as a principal in the same transaction in a separate indictment, these statements being made in reference to the deceased, and the bill refers to the statement of facts in order to show what those witnesses testified with reference to these conversations, acts, and doings of M.B. Dobbs, father of appellant, as made or done in the presence of defendant, all of which refer to the deceased, as the bill is presented and in the absence of statement of facts no error is shown in admitting this evidence. The same question was passed on as we understand on the former appeal cited, supra.

Another bill of exceptions was reserved to the court overruling some exceptions of appellant to certain questions asked the mother of appellant on cross-examination. The bill discloses that she testified on the former trial for her husband, M.B. Dobbs. The stenographic report of her testimony was used by the State's attorney in asking questions, and from that report it seems he asked questions of the witnesses. After reading such questions and answers as he desired her to answer, and at the conclusion of which questions, she stated she did not remember that she so testified upon the trial of her husband. The State did not offer this in evidence; simply used it in asking questions apparently for the purpose of laying a predicate for impeachment. When this was done, appellant then introduced all of her testimony before the jury as taken on the trial of her husband, including the very questions and answers that had been read to her by the State's counsel. As the bill shows the matter, we fail to see any error.

With reference to the testimony of the witness Bass, in the absence of the testimony introduced on the trial we are of opinion that the matter is not so presented as to show any material error. Without the facts before us we are of opinion the bill of exceptions does not sufficiently show such error as would require a reversal of the judgment, even if any is shown at all.

The error in the charge suggested for reversal, in the absence of the statement of facts, will not be revised. These may have sufficiently presented the issues suggested by the testimony.

As the record is presented, we find no error which would require a reversal, therefore, the judgment is affirmed.

Affirmed.

Brooks, Judge, absent.

ON REHEARING. November 18, 1908.