Sorrell v. State

The motion for rehearing was filed and submitted several weeks ago. A decision on it was deferred to give each side an opportunity, and they were invited to do so, to file whatever answer affidavits and brief they desired. Each side has fully availed itself of this opportunity, and has filed affidavits, original letters, documents and briefs presenting their respective sides and opposing the other. We have carefully considered all these matters and made a careful and thorough investigation of the question.

The original opinion was delivered April 5, 1916, affirming the case. After its original submission by briefs and oral arguments for both sides, the court held the case some two months under consideration before delivering the opinion. Each member of the court personally read and studied the record and the questions and briefs of both sides. The case was tried in the lower court in October, 1915, and the motion for new trial was overruled on October 15, 1915, at which time at the time, at his instance, entered an order allowing sixty days thereafter within which to file bills of exceptions and a statement of facts. There appears in the record a large number of bills of exceptions, each of which on its face appears to have been properly allowed and signed by the trial judge. There also accompanies the record a full statement of facts, which shows on its face to have been agreed to and signed by all of appellant's attorneys — one firm of three members and three other individual attorneys, as attorneys for appellant — and also signed by the district attorney and two other attorneys in behalf of the State. This also appears on its face to have been regularly and properly approved and signed by the trial judge. These documents were filed in the lower court December 11, 1915 and in this court January 12, 1916.

No intimation in any way by either side, or any attorney for either side, was then made to this court, that the approval of said bills and statement of facts, was other than in every way regular and so approved, allowed and signed by the trial judge before they were filed in the lower court. Of course, under these circumstances, this court fully considered all of them in deciding the case and rendering the opinion.

The first time any intimation was made to this court that said documents were other than as stated, was April 19, 1916, when appellant filed his motion for rehearing. The sole ground of that motion is to strike out said bills and statement of facts because they were not approved and signed by the trial judge, and reverse this case because he was deprived of them without fault on his part and after he had used all the diligence to properly procure them required of him by law.

It is unnecessary to detail the several affidavits, letters, etc., which are attached and made part of the respective pleadings of the parties constituting the motion for rehearing and resistance thereof. Instead, we will succinctly give the conclusions we have reached therefrom, and the record, other than said documents.

Hon. R.M. Smith was the judge of the judicial district of which Smith County, where this trial occurred, was a part. For reasons satisfactory to himself and the attorneys he did not hold the court at the time this trial was had, but Hon. J.S. McIlwaine was duly elected and qualified as special judge, before whom the trial occurred. It seems he held the whole term of this court, which consumed some five weeks, and the term adjourned the next day after he overruled the motion for a new trial. During this trial, he became nervous and somewhat ill, of which all of the attorneys and appellant himself had actual notice and knowledge. Shortly after the court adjourned, Judge McIlwaine and his wife went to Mineral Wells, where they remained two weeks on account of his illness. They returned to Tyler therefrom on November 17th, and he was in his office two days transacting his business. Late in the afternoon of November 18th, in company with his brother, he went to a sanitarium at Arlington Heights, near Fort Worth, where he remained until his death, which occurred December 25, 1915. For a while after reaching that sanitarium he did well — received and read his mail and magazines. After he had been there some two weeks, his wife went to him, staying a day or two, and finding he was doing well returned home in Tyler. While in the sanitarium, for a while, he would have worse days than others, and one day while in his worse condition one of appellant's attorneys, Judge Simpson, who had the bills and statement of facts in charge, ``phoned to the attending physician to know if the judge was in condition to consider and pass upon them. The doctor at that time told the attorney he was in no condition to attend to such matter on that day. A day or two later, when in better condition, appellant's attorney again ``phoned the attending physician and had him state the matter to the judge and to know if he would authorize the district clerk at Tyler to sign his name, allowing and approving said documents, and the judge thereupon stated that while it was somewhat irregular, he would consent that the clerk sign his name thereto, which appellant's attorneys thereupon had the clerk to do. Right after this, his wife visited him in the sanitarium, to whom he mentioned the matter of authorizing and directing the clerk to sign his name to said documents and of the conversation between the attending physician and himself about the matter and she says he then seemed to understand it. Soon after this he became much worse, unconscious, and remained in that condition until he died at the time stated.

Neither appellant nor his attorneys at any time ever sought to have Judge McIlwaine, or the regular judge either, to extend the time for filing the bills of exceptions to ninety days, or other than the sixty days allowed, as stated. The law, without any order whatever, gave him the right to procure and file a statement of facts at any time within ninety days from the overruling of his motion for a new trial.

Nor did appellant or his attorneys at any time ever attempt to get the regular judge of the court to act upon or approve either their bills or the statement of facts nor other than as hereinbefore stated. Neither did they attempt at any time to procure bills of exceptions by bystanders. Nor did they attempt to show at any time that they could not have done so.

Two of appellant's attorneys only sign the motion for rehearing. They and appellant himself show that they had no personal knowledge how Judge McIlwaine's signature was procured to said documents, and that they did not learn it until some time afterwards. But it is clearly shown that the preparation of the bills and the agreement to the statement of facts was left to Judge Simpson and one of his partners, who attended to the whole thing for all attorneys and appellant. It was they, and especially Judge Simpson, who procured the approval and signature of the judge. Under the circumstances, unquestionably the appellant himself and the other attorneys can claim no advantage whatever because of any lack of knowledge on their part, but appellant and they are as equally bound thereby as Judge Simpson and his partner could, or would be. Practically the universal practice in criminal cases is for the attorney for the appellant, and not appellant himself, to prepare all bills of exceptions and a statement of facts, and never at any time submit them to the appellant himself but all such matters are settled exclusively between the attorneys for the respective sides and the trial judge, or judge of the court; so that whatever was done in this case by appellant's attorneys is in law and in conscience the same as if done by himself.

The law and the principles applicable to what judge must approve and sign bills and statements in ordinary cases where the trial judge, whether special or regular, is still alive and mentally and physically able to act, are so well settled that we will not attempt to cite the authorities on the subject, but we will state some of the rules.

Under the circumstances just stated, it is necessary for the judge before whom the trial was had to approve and sign these documents; and if the term of the regular judge ends before he acts upon them and he is succeeded by another regular judge, or when the trial occurs before a special judge, the bills must be signed by the judge who tried the case, even though his term of office expires and he is succeeded by another regular judge, or if the term of court at which the trial was had before a special judge ends, or the regular judge succeeds him on the court, such special judge, though after his term expires, must approve and sign such documents.

Ordinarily, no statement of facts or bills can or will be considered by this court, unless properly approved and signed by some judge authorized to do so; in other words, the attorneys or the parties themselves, can not by agreement dispense with the approval and signature of some judge authorized to act in such matters.

If an appellant is deprived of either his bills or a statement by the opposite side or the trial judge, without any fault on his part and when he has used all the diligence necessary on his part to procure such documents, he is entitled to a reversal; but as stated, he must use all diligence necessary to procure these documents, and the fault for failing to procure them must not lie at his door. If he fails and the fault is his or his attorney's, then he is not entitled to a reversal, even though he gets neither bills of exceptions nor a statement of facts, nor both. Mr. Branch lays down the correct rule and cites some forty cases establishing it. If the failure to have a statement of facts (or bills) filed in time is due to neglect of defendant, or if he fails to show diligence, or fails to exhaust the means provided by law to obtain these documents, they will not be considered, nor in such event will the judgment be reversed for failure to obtain them. Branch's Ann. P.C., sec. 597, p. 206.

Strange as it may seem, after the most diligent search, we have been unable to find any case in either this court or the civil courts of this State, and neither side has cited any where it has arisen and been decided, whether or not the regular, or succeeding judge, can approve such documents in case of the death or insanity of the judge who tried the cause. The courts of other States and jurisdictions are not in harmony on the subject. All the cases and authorities on the subject discuss bills of exceptions, not statements of facts. The rules, however, that would apply to the one would equally apply to the other. The late work of Stand. Ency. of Pro., vol. 4, p. 333, says: "Many courts hold that where the judge dies or goes out of office by resignation or because of expiration of his term, that the bill must be signed by his successor," citing New York Life, etc., Co. v. Wilson, 8 Peters, 291, 8 L.Ed., 949, and the decisions of some thirteen States establishing this rule. To the same effect is 1 Thompson on Trials, sec. 214, and other sections in that chapter; and also 3 Ency. of P. P., p. 455. The United States Supreme Court in the case cited supra, says of the judge succeeding the judge who tried the cause: "He as the successor of his predecessor, can exercise the same powers and has a right to act on every case that remains undecided upon the docket as fully as his predecessor could have done. The court remains the same, and the change of the incumbents can not and ought not in any respect to injure the rights of litigant parties." In that case, the court awarded a writ of mandamus, compelling the successor of the trial judge to sign the judgment rendered by his predecessor. We refer also and approve the reasoning and decision in Conway v. Smith Merc. Co., 6 Wyo. 327, 44 Pac. Rep., 940, 49 L.R.A., 201. See also Hays v. McNealy, 16 Fla. 406; Bullock v. Neal,42 Ark. 278; Watkins v. State, 37 Ark. 370; Cowall v. Altchul,40 Ark. 172; Shields v. Horbock, 40 Neb., 103; Turner v. Hearst,115 Cal. 394; Railway Co. v. Rogers, 48 Ind. 427. We think it clear that Judge Smith, the regular judge, was, in law as well as in fact, the successor of Judge McIlwaine as to everything pertaining to this case when the latter judge died, and that he had the power, and it would have been his duty, had the appellant applied to him for that purpose, to have passed upon the said bills and statement of facts; and if he had refused, this court upon proper application to it for that purpose, would by mandamus have compelled him to do so. But none of this was done, or attempted to be done, by appellant, or his attorneys. There would have been no difficulty whatever in Judge Smith intelligently and with full information passing upon all these documents. A regular court stenographer reported the case fully under the law. From this report Judge Smith could unquestionably have ascertained all of the testimony introduced on the trial, and in addition could have thereby passed upon every bill and made every qualification thereto that was made to the bills herein. In addition to this, the attorneys for both sides agreed in writing and signed and approved the statement of facts as the true statement of all of the testimony introduced on the trial, and the attorneys for both sides agreed to all the bills and the qualifications thereof which were made; and Judge Smith also could have granted, if necessary, thirty days longer for the attorneys or himself to have passed upon said bills of exceptions. This court has always recognized as valid such an order made by the regular judge when a special judge or another judge whom he succeeds tried the cause. Such an order is not one which the trial judge alone could have made. Of course, under the statute, if Judge McIlwaine had not died or become wholly mentally incapable to pass upon said documents, then he alone, under the statute, would have had the right to have passed upon them. Our decision herein is in no way in conflict with Richardson v. State, 71 Tex.Crim. Rep.; Porter v. State, 72 Tex.Crim. Rep.; Allen v. State,72 Tex. Crim. 277; Kaufman v. State, 72 Tex. Crim. 455, or McGee v. State, 78 Tex.Crim. Rep., 182 S.W. Rep., 309. In the Richardson case, just cited, we purposely said: "If such a contingency should arise where it would be impossible to secure the signature and approval of the trial judge, such as death, removal beyond the limits of the State, or other cause, rendering it impossible to secure his approval, a different question might be presented." That different question is here presented, and we decide in accordance with authority and reason. Besides this, without detailing it, there was much other delay and negligence of the appellant even while Judge McIlwaine lived, which would have prevented a reversal because he did not sooner present the bills and statement of facts and have Judge McIlwaine sign the same before he became incapacitated or died. Many decisions of this court so hold. We cite some of them: Turner v. State, 22 Texas Crim. App., 42, 2 S.W. Rep., 619; Henderson v. State, 20 Texas Crim. App., 304; Bryant v. State,35 Tex. Crim. 395, 33 S.W. Rep., 978, 36 S.W. Rep., 79; Bell v. State, 31 Tex.Crim. Rep., 21 S.W. Rep., 259; Riojas v. State, 36 Tex.Crim. Rep., 36 S.W. Rep., 268; George v. State, 25 Texas Crim. App., 229, 8 S.W. Rep., 25; Monk v. State, 38 Tex.Crim. Rep., 44 S.W. Rep., 158; Dennis v. State,41 Tex. Crim. 160, 53 S.W. Rep., 111; Adams v. State,41 Tex. Crim. 366, 60 S.W. Rep., 255; Shaffer v. State, 65 S.W. Rep., 1072; Ashman v. State, 74 S.W. Rep., 317; Murphy v. State, 45 S.W. Rep., 719; Bracy v. State, 49 S.W. Rep., 598; Farris v. State, 26 Texas Crim. App., 107, 9 S.W. Rep., 487; Aistrop v. State, 31 Tex.Crim. Rep., 20 S.W. Rep., 989; Jones v. State, 163 S.W. Rep., 75; Gowan v. State, 73 Tex. Crim. 227, 164 S.W. Rep., 6; Laws v. State, 73 Tex. Crim. 287, 164 S.W. Rep., 1015.

So that if we should strike out said bills and statement of facts and not consider them, appellant would not be entitled to a rehearing herein, nor to the reversal of this cause because he failed to get them, his failure being due to his own neglect, as shown.

Again, so far as the bills are concerned, if the approval of them by Judge McIlwaine should be held invalid, it would have been appellant's duty, and the proper diligence would require him, to prove up such bills by bystanders. He in no way attempted to do this. Nor does he in any way intimate that he was unable to do so.

Further, the State contends that, under the circumstances of this case; appellant is estopped to now, at this late day, have said bills and statement struck out and claim a reversal because he was deprived of them, claiming that he was deprived of neither, because he got the full benefit of all of them, and he does not claim that any of them are in any particular wrong or did not correctly and fully state the facts and the matters therein. We are inclined to believe that the State's contention is correct.

Again, the State contends, not without show, that the signature of Judge McIlwaine to said documents, under the circumstances, should be held sufficient to properly authenticate them, but it is unnecessary for us to decide that question now.

For years now every district court has had a sworn official court stenographer, whose duty it is, and who does, take down in shorthand and transcribe all the testimony and all the proceedings of every trial. Such reports by stenographers are relied upon by the attorneys for both sides and the judges for complete, full and accurate information and knowledge of everything that occurred on the trial. From this data practically exclusively all statements of facts and bills of exceptions are prepared, and the judge gets therefrom whatever is necessary to explain and qualify bills of exceptions, and it is practically procured from no other source. Hence, it is the case that all statements of facts and bills of exceptions, when cases are appealed, are prepared and filed after the adjournment of the court and within the time authorized by law or the order of the court. If appellant's contention should be sustained, then the inevitable effect of it would be, if any judge who held a whole term of court or tried any particular case should die or become insane, and his successor could not pass upon statements of facts and bills of exceptions if the trial judge had not done so before, that the whole work of the term or of the particular case would practically be a nullity. This would result in such an injustice to every litigant in every case, that no such doctrine should be held, unless it is imperative under the law that it should be. We think that neither the law nor justice requires or would justify such a holding by this court. In fact, we are thoroughly convinced that under the law the successor of such judge dying or becoming insane would unquestionably have the power and authority, and it would be his duty, to complete the work of such deceased or insane judge.

Under the circumstances of this case, we are clearly of the opinion that the appellant is not entitled to a rehearing, nor to a reversal of this case, whether said bills and statement of facts were properly procured or not, and whether or not they should be struck out and not considered and the order will be accordingly entered overruling his motion.

Overruled.