White v. State , 135 Tex. Crim. 210 ( 1938 )

The honorable district attorney of the Ninth Judicial District of Texas has filed an able motion for rehearing in which he challenges the conclusion expressed in the original opinion that appellant was deprived of his bill of exception number two. In connection with the motion it is shown that the bill of exception in question was presented to the trial judge for his consideration on the 4th day of October, 1937, and on the 23d day of the same month the bill was refused and returned to counsel for appellant. In view of the order of extension for filing bills of exception entered by the trial court on the 4th day of October, 1937, it is insisted by the district attorney that the filing of the unauthenticated bill of exception by counsel for the appellant on the 18th of October was unwarranted. In short, it is his position that, under the extension order, appellant had until the 24th of October within which to file said bill and that therefore he should have applied for a further extension of time if he anticipated the refusal of said bill.

In the original opinion we said: "The time within which to file bills of exception expired on October 19th." In the brief accompanying the State's motion for rehearing we find the following statement:

"In filing Appellee's Motion for Rehearing, same was done believing that the Court was in error in computing the time in which Appellant had to file his bills of exception. It is believed that the Court took into consideration the date when Appellant's Motion for Rehearing was overruled, and the date of the order extending the time for filing of statement of facts and bills of exception, and overlooked the date the court adjourned. This brief is being written with that in mind, and if the writer is in error as to when the time for filing of said Bills of Exception and Statement of Facts expired, then it is conceded by Appellee that the Court's opinion, as written, perhaps should stand."

If we were in error in holding that the time for filing bills of exception expired October 19th then the position of counsel for the State that appellant failed to use due diligence in the absence of a request for further extension of time might be tenable. Hence it becomes important to look to the date of the order overruling the motion for new trial, to the date of the adjournment of the trial court, and to the order of October 4th granting an extension of time for filing bills of exception.

The motion for new trial was overruled September 4th, 1937. Incorporated in the order is a provision as follows: "It is further ordered by the court that the defendant be granted thirty days in which to file statement of facts and bills of exception."

It would appear from the statement quoted that the trial judge was of opinion that he was granting appellant thirty days from September 4th in which to file the statement of facts and bills of exception. It is true that appellant had ninety days from said date under the statute within which to file the statement of facts and thirty days from the date of adjournment within which to file his bills of exception. The trial court was without authority to curtail the statutory time. The trial term adjourned September 9, 1937, and from that date appellant had thirty days within which to file his bills of exception. On the 4th of October, 1937, counsel for appellant presented to the trial judge an application for an extension of time within which to file the statement of facts and bills of exception, stating therein that October 4th was the last day for such filing. The application concluded: "Defendant respectfully requests that he be granted an extension of fifteen days in which to perfect his appeal in this case." The order granting the extension reads as follows: "October 4, 1937. The foregoing application for a fifteen days extension of time was on this date presented to me for consideration and the same is by me granted."

Looking to the statement in the application to the effect that the time for filing bills of exception expired on the 4th of October, and considering the general terms in which the order of extension is couched, it is manifest that it was the intention of counsel for appellant to seek an extension of fifteen days from the 4th of October, and further, that the trial judge intended to extend the time to the end that October 19th should be the expiration date for filing. In short, we think the record reveals it was the understanding of all parties concerned that under the extension order October 19th was the expiration date. We say this in view of the statement in the motion for new trial to the effect that appellant was granted thirty days from said date in which to file his bills of exception, and of the further fact that on the thirtieth day from said date the application was presented and the order made in the language heretofore quoted.

In McCleary v. State, 36 S.W.2d 166, it was said that the intention of the trial court in entering an order of extension ought to be given effect if that intention was discoverable from the record. In the present case the record indicates that it was the intention of the trial judge to grant an extension of fifteen days from October 4th. Hence, under the peculiar circumstances reflected by the record, we are of opinion that the time for filing bills of exception expired October 19th. It follows that we are constrained to adhere to the conclusion expressed in the original opinion that appellant has been deprived of his bill of exception. We pretermit further discussion of the question as the matter has been fully considered in the opinion heretofore rendered.

The motion for rehearing is overruled.