Stevens v. State , 128 Tex. Crim. 531 ( 1935 )

The State moves for rehearing on the ground that we had no right to consider appellant's only bill of exceptions, upon which we relied for our reversal of this case, — the State contending that said bill was filed too late.

From the record it appears that appellant's bill of exceptions to the court's refusal to grant his continuance was presented to the court on October 20, 1934, but was on said date qualified by said court, to which qualification appellant excepted in writing, and the court then undertook to prepare, and did prepare a bill of exceptions of his own in lieu of the one prepared and presented by appellant, — which latter bill was approved on September 22, 1934, and which concludes in the following language: "And the court here and now files the above as the defendant's bill of exception on the action of the court in overruling the defendant's said third motion for continuance therein as a part of the record in this case. This the 22nd day of October, A.D. 1934. Charles Clements, Judge 64th Judicial District of Texas. Endorsed: No. 807, The State of Texas vs. Roy Stevens." The date of the clerk's file mark on said bill is October 31, 1934.

The term of the trial court ended September 22, 1934. Under the terms of article 760, C. C. P., appellant was allowed thirty days in which to file his bills of exception, without any order of the court in regard to the matter. It thus appears that the notation placed upon the bill prepared by the learned trial judge was within the time allowed by statute for filing such bill. Why the clerk did not then put upon same his file mark as contained in the order of the court above quoted is not shown. We are not informed as to whether the court delivered to appellant the court's bill of exceptions. The matter is uncertain. We are unwilling to let one suffer deprivation of a bill of exceptions under the circumstances. See Kirkpatrick v. State, 85 Tex. Crim. 172.

The State's motion for rehearing is overruled.

Overruled.

MORROW, P. J., absent.