Sullivan v. State

In this case defendant was charged by information and complaint with the offense of slander. Upon a trial he was convicted, and has brought the case to this court on appeal.

1. Appellant filed a motion to quash the information and complaint. The court did not err in overruling the motion. Humbard v. State, 21 Texas Crim. App., 200; Dickson v. State,34 Tex. Crim. 1.

2. This case was tried at the November term of County Court of Delta County, which adjourned on the 10th day of December, 1910. The statement of facts was not filed until January 6, 1911. The attorneys now representing the defendant have filed their affidavit, and the affidavit of James Patterson that the statement of facts was presented to the county judge within twenty days of the day of adjournment of court. The certificate of the judge says he has no recollection when it was delivered to him. In cases appealed from County Court not more than twenty days can be allowed by law to file a statement of facts and bills of exception, yet where a defendant has exercised diligence to have the statement of facts filed within time, and it is through no negligence of defendant that it is not filed in time, this court will consider the statement of facts. However, the bills of exception were not approved by the court until the 6th day of January, 1911, and there is nothing in the record or the affidavits filed showing they were presented to the judge before the day they were approved and filed, consequently the motion of the Assistant Attorney-General to strike the bills of exception from the record is sustained, and we can not consider them in passing on this case.

3. There is a motion for a continuance in the record, and the defendant assigns as error the failure of the court to grant the motion. Not having reserved a bill of exceptions to the action of the court, we can not review the ruling of the court. To the motion there is no subpoena attached or other process. Trevino v. State, 38 Tex.Crim. Rep..

4. We can not pass on those assignments in the motion for new trial which are based on the refusal of the court to give special charges requested, because the bills of exception were not approved nor filed within the time allowed by law, and have been stricken from the record.

This being a conviction for a misdemeanor, and no exceptions being reserved to the charge, and no exceptions reserved to the failure of the court to give special instructions requested that we can consider, this judgment is affirmed, as the facts sustain the utterance of the words upon which the information is based.

The judgment is affirmed.

Affirmed.

ON REHEARING. May 24, 1911.