Adams v. State , 92 Tex. Crim. 264 ( 1921 )

The conclusion has been reached that the proper judgment was entered upon the original hearing. After the reversal, the bill of exceptions relating to the misconduct of the jury was attacked by the State. The opinion of this court in granting the State's motion for rehearing reflects the status of the record. The bill of exceptions, as it appears in the record, contained the evidence heard upon the motion for new trial. In the attack upon the bill after the reversal of the case, it is made to appear that the evidence heard on the motion for new trial was taken down by the official court stenographer, transcribed and certified as correct by him, and filed with the clerk of the trial court on the same day that the bill of exceptions was approved. The bill of exceptions shows that it was submitted to the attorney for the State, agreed to by him, and approved by the trial judge.

The point made is that the transcribed notes of the stenographer mentioned were not physically embraced within the original bill, though it appeared to be so in the transcript filed in this court. The original bill bearing the agreement of the attorneys to its correctness and the approval of the trial judge states that upon the hearing of the motion for new trial, the "jurors appeared as witnesses, and the following testimony was had:" and also states that the "testimony produced upon the trial is to be taken up here." In making up the record, the clerk took the testimony up at this point and embraced it in the record as a part of the bill. No challenge of the correctness of this was made upon the submission of the case, and in our opinion, after judgment, the challenge of it made could not be entertained. The testimony taken reveals that the appellant was not tried by an impartial jury within the meaning of the law; that he alleged and proved this fact on his motion for new trial; that the members of the jury testified; that the official stenographer transcribed and certified and filed it. We think there can be no other opinion but what in contemplation of the parties at the time the bill was signed and approved, it was intended that this paper containing the testimony should be a part of the bill. It was so treated by the clerk in preparing the transcript; it was so treated by counsel in submitting the case. It is not, in our judgment, upon a footing with those cases in which it appears that the clerk should insert in the statement of facts the contents of unfiled papers. In other words, the recitals in the present bill appear to be distinguishable from those in which the statement of facts prepared by the parties contained a statement such as this: "The clerk will here insert orders of the Commissioners' Court." See Davis v. State,52 Tex. Crim. 547, and others cases referred to in opinion affirming the case. Those cases reflect the intent of the parties that the clerk should hunt up the papers or records and insert them in the bill. The instant case does not impress us as expressing such an intent, but on the contrary, indicates that the testimony which had been transcribed and which was filed in the court should be taken as a part of the bill. It cannot be denied that it would have been more orderly to have prepared the bill in full, copying the testimony therein, but in the light of the action of the parties in treating the bill as correct, as copied in the record at the time of the submission of this case, when they are presumed to have had full knowledge of its status, we are unwilling to sanction its subsequent attack upon the point made and order an affirmance of the judgment based upon the verdict of the jury, which was not, in the contemplation of the law, an impartial one.

It is therefore ordered that the appellant's motion for rehearing be granted, that the affirmance of this case be set aside; that the judgment of conviction be reversed for the reasons stated in the original opinion and the cause remanded.

Reversed and remanded.