DocketNumber: No. 2873.
Citation Numbers: 78 S.W. 926, 45 Tex. Crim. 556
Judges: BROOKS, JUDGE.
Filed Date: 1/20/1904
Status: Precedential
Modified Date: 1/13/2023
The judgment was affirmed at a former day of this term, and is now before us on rehearing. In the original opinion we held we could not consider the statement of facts in the absence of an order authorizing the same to be filed after the adjournment of the term of court. Attached to appellant's motion for rehearing is the affidavit of Hon. W.H. Pope, the judge presiding at the trial of this case, showing the following facts in reference to said order: That on the 31st day of October, 1903, motion for new trial was duly presented in the case of the State of *Page 557
Texas v. Sam Sampson. The same, after argument, was overruled; and defendant gave notice of appeal to the Court of Criminal Appeals of the State of Texas. That defendant's counsel asked that an order be entered granting defendant twenty days after adjournment in which to file statement of facts and bill of exceptions; and the court granted the order, and told counsel he would enter it; that the judge was then on the bench, with the motion docket before him; and while counsel was present began the making of the entry on the docket of said order; that he made a partial entry of such request on the docket, but on account of some interference, as he verily believes, he omitted to enter the order that defendant be allowed twenty days in which to make out and file statement of facts and bill of exceptions; that the fault to so make said entry was purely the judge's fault, and the failure to enter the same upon the docket was the act of omission of the court. By the acts of the Twenty-eighth Legislature (sec. 1 p. 32), it is provided, "That parties to causes tried in the district and county courts of this State may, by having the order to that effect entered on the docket, be granted twenty days after the adjournment of the term of which said cause may be tried, to present and have approved and filed the statement of facts and bill of exceptions." We hold that, under this statute, it is the imperative duty of counsel for appellant to see that said order is entered by the judge on the docket; and inadvertence or neglect on the part of the judge will not excuse appellant's counsel for the failure to have this order so entered. Under the old article in reference to filing statement of facts after adjournment of the term, we held it was the duty of counsel for appellant to see that the ten-day order was properly entered of record. Smith v. State, 53 S.W. Rep., 632; Brown v. State, 44 S.W. Rep., 172; Denton v. State,
Motion overruled.