Humphreys v. State

Appellant in his motion for rehearing makes the very unusual contention that we should grant his motion and reverse this case because as he says the transcript as filed in this court has omitted to include in it his recognizance, the judgment of the court pronouncing sentence and the motion for a continuance.

The transcript is before us and it contains the judgment of the court pronouncing sentence and appellant's notice of appeal to this court. There are no bills of exceptions contained in the record and if a motion of continuance was made and overruled it would not avail appellant without a bill of exception. Neither does the fact that the transcript fails to reveal a recognizance affect the appellant's rights before this court in any manner, as in the absence of same and any showing to the contrary he is presumed to be in custody. The contentions above stated might very properly be disposed of by saying that if the appellant desired to have the transcript corrected, it was his duty to make a proper application before this court to have it done and to have supported it with a proper affidavit. A motion for rehearing on the merits is not the proper method of raising the questions above presented.

We have carefully considered appellant's other complaints in the motion for rehearing and find that they are without merit.

The motion is accordingly ovverruled.

Overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.