Mundine v. State , 50 Tex. Crim. 93 ( 1906 )

Conviction of burglary, two years in the penitentiary being fixed as the punishment. The Assistant Attorney-General has filed an able brief in this case. In view of the fact that it discusses the only questions necessary to be passed upon we adopt said brief as the opinion of this court. Accordingly, no error appearing in the record, the judgment is affirmed.

Appellant was charged by indictment with the offense of burglary. He was convicted and his punishment assessed at two years confinement in the penitentiary. And his motion for new trial in the district court having been overruled he has appealed to this court.

The stenographer's report of the evidence, which is relied on as a statement of facts was filed subsequent to the adjournment of court. There is not any order in the record authorizing the statement of facts to be filed within twenty days after the adjournment of the court. The only order of this kind in the record authorizes the bills of exception to be filed within the twenty days, but does not so provide for filing the statement of facts.

The record being in this condition it becomes a question for consideration whether or not the statement of facts can be considered, and this involves a construction of the Act of the Twenty-Ninth Legislature, pages 219, 221. So much of said act as may be considered pertinent to the question here under consideration reads as follows:

"Sec. 3. It shall be the duty of the official stenographer to attend all sessions of the court, to take full stenographic notes of the oral evidence offered in every case tried in said court, together with all objections to the admissiblity of testimony, the rulings of the court thereon, and all exceptions taken to such rulings; to preserve all official notes taken in said court for future use or reference, and to furnish either party to the suit a transcript of all of said evidence or other proceedings, upon the payment to him of the compensation hereinafter provided.

"Sec. 4. When such transcript is made at the request of either part to the suit, said stenographer shall file a duplicate copy thereof among the papers of the case, and it shall be made the duty of the court, if the transcript be found to be correct, to approve the same; provided, however, before approving the same it shall be submitted to the interested parties for any objections thereto, and such objections, if found to be material and well founded, shall be allowed. If said transcript is thus approved and signed by the judge, the same shall be filed among the papers of said cause, and become a record therein, but not to be recorded.

"Sec. 5. In case an appeal is taken from the judgment rendered in said case, said original stenographer's transcript shall be sent up as the record of said cause as the report of the testimony therein, the cost of such transcript paid by either party to be taxed against the party losing on such appeal," etc.

This act must be construed in connection with an Act of the Twenty-Eighth Legislature, page 32, which provides in effect that parties may be granted an order for twenty days after the adjournment of the term to present and have approved and filed statement of facts and bills of exception. This latter act is not repealed by the Act of the Twenty-Ninth Legislature. The latter act does not contain any repealing clause. Neither is it in conflict with any of its provisions with the Act of the Twenty-Eighth Legislature as to filing statement of facts. Both may be given full and unrestricted effect without any clash between any of the provisions of either act. Both may be put into full operation and effect and both stand unaltered in any of their enactments.

If it should be contended that the Act of the Twenty-Ninth Legislature takes the preparation and filing of statement of facts out of the hands of the parties to the litigation and places them with the stenographer and trial judge, it would still not be in conflict with the Act of the Twenty-Eighth Legislature allowing the statement of facts to be filed within twenty days after adjournment, upon the request therefor by the parties. That act would still stand in full force, and even if it should be contended that the parties under the new act have no voice in the preparation of the statement of facts, still there would yet remain authority in the Act of the Twenty-Eighth Legislature to request an order to have the statement of facts filed within twenty days.

It is evident and plain from the provisions of the Act of the Twenty-Ninth Legislature quoted, that the matter of preparing and filing statement of facts was not taken away from the litigants, but instead of the litigants preparing from memory a statement of facts, it is provided that the stenographer reporting the case shall transcribe his notes, and this shall constitute the statement of facts, provided that "it shall be submitted to the interested parties for any objections thereto, and such objections if found to be material and well founded, shall be allowed," and "provided that in any case where such stenographic transcript is not made, this act shall not apply." From these provisions quoted, it is apparent that the making and filing of a statement of facts is not taken from the litigant and lodged with the stenographer, and that the litigant has the same voice in what it shall contain as he had prior to its enactment, — in each instance the final arbiter of its correctness being the trial judge. The only difference between the old and the new way of preparing, having approved and filing the statement of facts is, that the litigant is now provided a material and beneficial aid by the use of a stenographer in the preparation of the statement of facts.

Neither does the act repeal articles 1379 and 1380, Revised Statutes, allowing either party to make up a statement of facts in the old way, to be agreed upon by the parties, and approved by the court; for the Act of the Twenty-Ninth Legislature, especially provides, in section 5, "Provided, that in any case where such stenographic transcript is not made, this act shall not apply." "Stenographic transcript" being evidently understood to mean the stenographer's notes transcribed, and not the notes; not every case where a stenographer takes notes of the trial. For it is provided in section 4 that such transcript shall only be "made at the request of either party to the suit." The evident legislative intent and the plain meaning of said act, is, to provide an additional method for preparing statements of fact, and not to repeal articles 1379 and 1380, Revised Statutes. Suppose a litigant should not desire to incur the expense of paying a stenographer to transcribe the trial notes, and should refuse to do so, would it be contended that the Act of the Twenty-Ninth Legislature requires and compels him to do so, or to forfeit his right of appeal? Clearly not so, but the new act is merely an additional method provided.

By article 1382, Revised Statutes, it is provided that whenever a statement of facts shall have been filed after the time provided by law, and the party tendering or filing same shall show to the satisfaction of the court, that he has used due diligence to obtain the approval and signature of the judge thereto, and to file the same within the time provided by law, and that his failure to file the same within said time is not due to the fault or laches of said party or his attorney, and that such failure was the result of causes beyond his control, the court shall permit said statement of facts to remain as a part of the record, and shall consider same. This article of the statute furnishes the only excuses for not filing within term time, when no order is made granting twenty days after adjournment to file same, or subsequent to the twenty days when it is granted; and in this case appellant has made no showing of any kind to excuse his negligence, and it is clear that there is at least one act of diligence, one thing within his power that he has omitted, which he could have done; that is, he could have requested and secured an order of twenty days after adjournment to file statement, and in not so doing he was guilty of laches, and failed to exercise due diligence. The following authorities sustain the contention, that a statement of facts filed out of term time cannot be considered on appeal where there is no order of court allowing it to be so filed. Williams v. State, 35 Tex.Crim. Rep.; Irby v. State, 34 Tex. Crim. 283; Blackshire v. State, 33 Tex.Crim. Rep.; Yungman v. State, 35 Tex.Crim. Rep..

In support of the position that, where the appellant is guilty of laches and the failure to file statement in time is due to his own fault and lack of diligence, the court will not consider same on appeal, the following authorities are in point: Childers v. State, 36 Tex.Crim. Rep.; George v. State, 25 Tex. Crim. 229; Spencer v. State, 25 Tex.Crim. Rep.; Farris v. State, 26 Tex.Crim. Rep.; Baldwin v. State, 39 Tex. Crim. 245.

In the absence of a statement of facts, if the charge is applicable to any state of facts that might be made by testimony under the allegations of the indictment, on appeal it will be considered and assumed that the trial court submitted to the jury all the law applicable to the case. Wright v. State,37 Tex. Crim. 146; Yawn v. State, 37 Tex.Crim. Rep..

And in the absence of a statement of facts, this court is restricted in considering the record to fundamental errors. Johnson v. State, 29 Texas Crim. App., 210; Lynn v. State, 28 Texas Crim. App., 515.

And there being no fundamental error found in this record, the judgment should be affirmed.

Affirmed.

ON REHEARING. November 14, 1906.