Cannon v. State , 41 Tex. Crim. 467 ( 1900 )

I concur in the result reached in this case. I dissent from that portion of the opinion which admits the statement of facts for consideration. The affidavit of Hon. R.E. Brooks, the district judge who sat during the trial, taken in connection with that of Hon. T.S. Henderson, of counsel for appellant, in my judgment clearly shows a want of diligence in the preparation and presentment of the statement of facts to the trial judge within the ten days allowed by the order of the court. These affidavits are set out in the original opinion. In addition to these, Hon. D.S. Chessher, county attorney of Williamson County, files an affidavit showing substantially that on Friday, after the adjournment of the District Court on the previous Saturday, by conversation over the telephone with Hon. T.S. Henderson, he urged an early preparation of the statement of facts. Henderson stated that Judge Ford (counsel for appellant) was then in Cameron, dictating the statement to the stenographer. Chessher requested that the portion of the statement already prepared be furnished him, but was told that none of it had at that time been written out, and that Judge Ford was then dictating it. He then asked Mr. Henderson when he thought he would get through, and the reply was, "By Monday." Affiant then notified counsel, in the same conversation, "that he did not know how they would have time to get through with said statement, and get same approved, and urged him to press the same." Chessher became uneasy about getting a full statement of the facts, and on the next day went to Franklin, in Robertson County, arriving there at 6 o'clock Saturday evening, August 19th. With the assistance of Judge Crawford, District Attorney Scott, and Judge Simmons, counsel for the State, they began the preparation of a statement of facts, in connection with two typewriters, and worked Saturday night until 12 o'clock, and Sunday, and part of Sunday night, and completed the statement. This, in connection of thirty pages, which had previously been prepared by Chessher, made out what he says was a full statement of the facts, and he further states "that this is as full as the statement presented by counsel for appellant." Upon his return to Georgetown (where the case was tried) he asked Judge Robertson of that place (counsel of appellant) if appellant's statement had arrived, and was informed it had not, but he was looking for it on every train. Finally, the statement of facts prepared by appellant's counsel was called to his attention a little after 2 o'clock on August 22d. This was the last of the ten days allowed by the court. Chessher and Robertson then went over the statement of facts, in connection with the district attorney, Hon. Warren W. Moore, and at seven minutes to 12 o'clock that night agreed. It was then carried to the district judge, who states, under oath, that it was handed to him at three minutes to 12 o'clock. He refused to sign and approve it until he had inspected it, which the majority of the court hold was correct. Had counsel for appellant called upon the district judge to be present with the State's and defendant's counsel while they were going over the statement of facts, the same could have been approved by him at the time it was agreed upon. But this was not done. So, taking the whole matter together, it will be seen that appellant's counsel began dictating the statement of facts on Thursday, after the court had adjourned on Saturday, and that this statement, when finally prepared, was sent on Monday, by express, to Georgetown, in Williamson County, to one of appellant's counsel, and was not presented to the judge until three minutes before the expiration of the ten days. I do not believe this is diligence, under the statute.

Under article 1382, Revised Civil Statutes, a statement of facts prepared under the ten days allowed for that purpose must be filed within that time, and the "failure to file same within said time must be shown not to be due to the fault or laches of the party or his attorney, and that such failure was the result of causes beyond his control." It is clear, from an inspection of the affidavits, that it was not beyond the control of appellant's counsel to file same in ten days. It was only about fifty miles by rail from Cameron to Georgetown. The statement of facts could have been in Georgetown on Monday evening before 7 o'clock by proper diligence, which would have given Monday night and all of Tuesday, to 12 o'clock at night, in which to have completed and approved said statement. But, back of that, there was a want of diligence in not preparing the statement of facts earlier. The statement, as prepared, had about 150 pages, to which were added a few pages by the trial judge. So far as I am aware, all of the decisions in all the appellate courts of this State, civil and criminal, have held strictly to the wording of the statute. If there is a contrary decision it has escaped my attention. See George v. State, 25 Texas Crim. App., 229; Spencer v. State, 25 Texas Crim. App., 585; Farris v. State, 26 Texas Crim. App., 105; George v. State, 25 Texas Crim. App., 229; Aistrop v. State,31 Tex. Crim. 467; Bell v. State, 31 Tex.Crim. Rep.; Kutch v. State, 32 Tex.Crim. Rep.; Blackshire v. State,33 Tex. Crim. 160; Smith v. State, 33 Tex.Crim. Rep.; Blain v. State, 34 Tex.Crim. Rep.; Armstrong v. State,34 Tex. Crim. 642; Yungman v. State, 35 Tex.Crim. Rep.; Bryant v. State, 35 Tex.Crim. Rep.; Childers v. State, 36 Texas Crim. Rep., 128; Henderson v. State, 37 Tex.Crim. Rep.; Bonner v. State, 38 Tex.Crim. Rep.; Monk v. State, 38 Tex. Crim. 602; Dement v. State, 39 Tex.Crim. Rep.; Davis v. State, 39 Tex.Crim. Rep.; Bailey v. State (Texas Crim. App.), 53 S.W. Rep., 117; Dennis v. State, Id., 111; Bracy v. State (Texas Crim. App.), 49 S.W. Rep., 598; Johnson v. State (Texas Crim. App.), 38 S.W. Rep., 994; Ellis v. Cunningham, 16 Texas Civ. App. 572[16 Tex. Civ. App. 572]. Ellis v. Cunningham, supra, is strictly analogous to this case, as is Dennis v. State (Texas Crim. App.), 53 S.W. Rep., 111.

All the decisions agree that where the mails have been relied upon, and the party has failed thereby to secure a statement of facts, on account of some accident to or detention by the mails, it is a want of diligence, under article 1382. The opinion recognizes this, but relies upon the recent decision of the Court of Civil Appeals in Carothers v. Lange. That case has no application here. The court in that case permitted the filing of a transcript where the opposite party sought an affirmance on certificate, and held in regard to that matter that reasonable diligence was shown, and permitted the record to be filed. The statute under which this decision was made reads as follows (article 1015, Revised Civil Statutes): "In any appeal or writ of error as provided for in this chapter, the appellant or plaintiff in error shall file the transcript with the clerk of the courts of civil appeals within ninety days from the performance of the appeal or service of the writ of error: provided, that for good cause the court may permit the transcript to be thereafter filed upon such terms as it may prescribe." If article 1382 read as does this article, there would be some cogency in the contention of the majority. But under this latter article the court may permit transcripts to be filed for good cause and upon such terms as the court may prescribe. Under article 1382, appellant must show the failure to file the statement of facts arose from no fault on his part and from circumstances beyond his control. The difference between the statutes is plain, and the rule prescribed by one has no analogy to the other. I therefore dissent from the position of the majority that the rule laid down for the filing of transcripts is applicable to the rule prescribed for the filing of statements of facts. Carothers v. Lange, supra, has no application to article 1382.

Nor was there any more diligence in sending the statement of facts by express than by mail. In Blackburn v. Blackburn (Texas Civil Appeals), 42 Southwestern Reporter, 132, the Court of Civil Appeals sustain the proposition that it is not diligence to rely upon express companies. In that case, as in this, ten days were allowed after the adjournment in which to file the statement of facts, the tenth day being December 1st. It was filed on December 2d. So in this respect the cases are analogous. In that case the judge approved the statement of facts on the 27th or 28th day of November. It was completed at Pearsall; thence forwarded by express to Cotulla, addressed to the district clerk of La Salle County. It was shown to have been in the office of the express company at Cotulla on the 28th — three days remaining of the ten days. At the time the package was expressed from Pearsall appellant's counsel wrote the district clerk notifying him of that fact, with the request if he did not receive it promptly to inform counsel at once, and, not hearing from the clerk, counsel believed it was on file, and did nothing more. The clerk received the letter on the 27th, called on the agent for the statement on that day, and was told that no such package was in his office. He did not notify counsel, nor did he call for the package again, believing an agreement had been made covering the delay. The express company did not notify the clerk the package had been received until December 2d. The court, citing article 1382, say: "This proposition clearly shows that the failure to file the statement in time must have resulted from a cause beyond the control of appellant or his counsel; in other words, that the greatest possible diligence is essential in such cases. That such diligence was the rule before the statute is decided in Proctor v. Wilcox, 68 Tex. 219. It seems to us that we are obliged to sustain this motion. The statement was ready for filing and in Cotulla three days before the ten days had expired. Appellant's counsel, after expressing the same, and writing the letters above referred to, did nothing more, but relied on the express company delivering it promptly, and upon the clerk notifying him if it had not reached him, and took the risk of these things. Certainly, this was not the exercise of the strictest diligence in the matter, and ample time and opportunity existed for knowing whether or not the statement had reached the hands of the clerk before the time expired. It can not be said, under the circumstances, that the cause was beyond the control of appellant. What was done would doubtless fulfill the measure of ordinary diligence, but not the strictest diligence." So it will be seen that the diligence is no more sufficient when the express company is relied upon than when the mail agencies of the government are invoked. In fact, in the opinion of the writer, it is greater diligence to use the governmental agencies for the transmitting of mailable matter than that of a private corporation. I therefore believe there was no such diligence used as required by the statute, either in the preparation or the transmission of the statement of facts or in getting it to the judge who tried the case for his approval. Nor do I believe the majority is correct in applying the provisions of article 1015 instead of article 1382. Article 1015 has absolutely no application to a statement of facts, nor does article 1382 have any to the filing of transcripts on appeal or writ of error. I therefore respectfully dissent from that portion of the opinion. I concur, however, in the result.

ON MOTION FOR REHEARING. (March 23, 1900.)