Drennan v. State , 53 Tex. Crim. 311 ( 1908 )

At the recent Dallas Term the judgment herein was affirmed, and the case is now before us on motion for rehearing.

The main criticism of appellant directed against the opinion is that in regard to some of the bills of exception the opinion states that appellant accepted the bills with the qualifications attached to them by the judge in approving said bills. His contention is that this statement in the opinion is incorrect, and files a statement of the clerk of the District Court of Delta County to the effect that Judge Porter sent him through the mail from Sulphur Springs the statement of facts and bills of exception, these matters having been prepared under an order of twenty days allowed for that purpose after the adjournment of court. The attorney for appellant also signs a statement to the effect that he prepared the statement of facts and bills of exception, and presented them to Judge Porter, the trial judge, for approval and consideration of the district attorney. That both officers were in Sulphur Springs holding court at the time, and that appellant's attorney did not see the bills of exception, and in his affidavit makes this further statement: "That affiant did not see bills of exception as presented to the judge and attorney until after they were filed by the district clerk on the 12th of February." We are of opinion that this character of attack cannot be made upon the record. As we understand the different statutes of our Legislautre, with reference to the extension of time in which to prepare and file statements of fact and bills of exception, more than ordinary diligence is imposed upon parties seeking to have such documents filed after adjournment of court, and the affidavits attacking the failure to procure such papers filed for consideration on appeal only refers to the question of diligence in securing their approval and having them filed, and that it is the duty of parties seeking to have such papers filed to use more than ordinary diligence. These papers were filed within the time. It is made to appear by affidavit of counsel that he prepared these documents and presented same to the district judge for his consideration as well as that of the district attorney, and, so far as his affidavit is concerned, he paid no further attention to them, and from the standpoint of his affidavits he relied upon the district judge for further attention to the papers and their disposition. The papers were filed within time, and, it seems, sent direct by the judge to the district clerk and not to the attorney of appellant, nor to appellant himself. Having obtained the order, it was incumbent upon appellant to see that the papers were filed as he desired them to be filed, and in the condition he desired them to be filed within the time allowed, and if they were not, and he had used proper diligence, the judgment might be reversed in order that he might have the benefit on appeal of such papers so that his case might be properly disposed of. We are still of opinion that by reason of the fact that appellant and his attorney failed to look after his bills of exception, and permitted them to be filed and incorporated in the record and sent to this court on appeal without any further notice from him, that it was an acceptance of the bills so prepared by the court. As this seems to be the matter presented as the reason why a rehearing should be granted, we are of opinion there is no reason shown why the affirmance should be set aside.

The motion for rehearing is, therefore, overruled.

Overruled.

Brooks, Judge, absent.