Presley v. State

Appellant was convicted of horse theft, his punishment being assessed at two years confinement in the penitentiary.

The Assistant Attorney-General moves to strike from the record the statement of facts because the same was not filed within the time and under the terms prescribed by law. Court adjourned on the 22d day of January, after entering an order allowing thirty days in which to file statement of facts. On the 2d day of March the following order was filed: "It is ordered in the above styled and numbered cause that twenty-five additional days be granted to the parties for making out their statement of facts and bills of exception and said time is extended to the twenty-eighth day of February, 1910." This order is signed by the judge. The statement of facts was filed on the 2d of March. The thirty day order expired on the night of the 21st of February. The order was not filed until the 2d of March. The statement of facts was filed on the 2d of March. To make the order extending the time legal and available it should have been entered before the expiration of the thirty days allowed by the court. In other words, the latest day upon which this order could have been made extending the time was the 21st of February. As the matter is presented, we are of opinion the motion is well taken, and the statement of facts will not be considered. In the absence of statement of facts the alleged error in overruling application for continuance can not be revised.

The charge of the court with reference to explanation of the possession of the alleged stolen property by the defendant is criticised. The objection to the charge is that the court informed the jury that if defendant's statement when first questioned was unreasonable and contradictory and did not account for his possession in a manner consistent with his innocence, they would find him guilty, appellant contending there was no evidence that his explanation when his possession was first challenged was unreasonable or contradictory, and because there was no evidence that said explanation did not account for his possession in a manner consistent with his innocence. The charge is identical with that in the case of Wheeler v. State, 34 Tex.Crim. Rep., except that after the word "unreasonable" the expression occurs "and contradictory." The reason assigned for the criticism of the charge is that there is no evidence that his statement was unreasonable or contradictory, and there is no evidence that his explanation failed to account for his possession consistent with his innocence. These criticisms or exceptions to the charge can not be considered in the absence of statement of facts. The evidence may have shown that his explanation was both unreasonable and contradictory. It being a question of fact, the court can not review these exceptions without the evidence. The point is not made that it was on the weight of testimony, and we are only required to treat the objections urged.

Motion to quash the indictment was presented and overruled. The particular portion criticised is in alleging the time. The indictment avers that it was "on or before the 21st day of July." It is contended that by the use of the expression "or before" that it does not preclude the question of limitation; that it may have been far back in the past, beyond the question of limitation. We are of opinion that this is not sufficient reason to quash the indictment. Such loose pleading, however, as this should not be indulged. It is well enough in setting out the date to be specific, but under the decisions in this State we are of opinion that this expression is not too indefinite, viewed from the standpoint of limitation. The date of the offense must be alleged so that it does not show on the face of the pleading to be barred by limitation. This seems to be the criterion of our decisions with reference to this matter. Quite a number of decisions are to the effect "on or about" a certain date is sufficient allegation of time. "On or before" may be perhaps a little broader as to time than the expression "on or about," but under all the decisions the setting out of the date in the indictment as to the commission of the offense is to show that at the time of the presentment of the indictment the offense was not barred by limitation. Of course, under the allegation in this indictment the evidence for the State would have to show the offense was within the period of limitation, counting back from the time the indictment was presented in the court by the grand jury. Viewing it from these standpoints, we are of opinion that the indictment is not so deficient as to require this court to hold good a motion to quash.

As the record is before us we are of opinion that the judgment ought to be affirmed, and it is accordingly so ordered.

Affirmed.

OPINION ON REHEARING. October 19, 1910.