Lee v. State

ON MOTION FOR REHEARING.

LATTIMORE, Judge.

This judgment was affirmed on May 17, 1933. As part of his motion for rehearing, appellant presents a statement of facts in narrative form, which does not appear to have been filed in the trial court at any time. We are asked to consider this statement of facts. We are without power or right to do so.

Appellant’s attorney generously assumes responsibility for the original statement of facts in question and answer form, which we could not consider, as stated in our original opinion. Said attorney sets up in the motion for rehearing that he had been misled by the new laws relating to the preparation of statements of facts, and also by section 1 of article 760 of the 1925 Code of Criminal Procedure, which provided, when enacted, that, in case of the refusal of a new trial in a criminal case, a statement of facts should be made, agreed to, approved and certified as in civil suits. We are sorry we can not comply with appellant’s request and consider the narrative statement of facts which accompanies the motion for rehearing. By the terms of sections 6 and 7 of chapter 34, Acts First Called Session, 42nd Legislature, which became effective August 17, 1931, it is specifically provided that subdivision 1 of article 760, Code of Criminal Procedure, 1925, be amended so as to read as follows: “Where the defendant in a criminal case appeals, he is entitled to a statement of facts certified by the trial judge and sent up with the record; provided that said statement of facts shall be in narrative form.” This law was in effect at the time this case was tried in August, 1932. The bringing before this court on appeal a statement of facts in question and answer form, was in direct violation of the commands of the statute.

An appeal made to us based on stringency of finances greatly appeals to us, but we can not set aside the provisions of the statute.

Being unable to consider the statement of facts, the motion for rehearing is overruled.

Overruled.