Feeny v. State

138 S.W. 135, 62 Tex. Crim. 585, 1911 Tex. Crim. App. LEXIS 339

• Court: Court of Criminal Appeals of Texas
• Decided: February 8, 1911
• Docket: No. 928.
• Status: Published

Opinions

DAVIDSON, Presiding Judge.

Appellant was convicted of forgery, his punishment being assessed at three years confinement in the penitentiary.

Motion is made by the assistant attorney-general to strike out the statement of facts because not filed within the time allowed by the court under orders entered. The court adjourned on the 2d of April, 1910. The court held over eight weeks. The order allowing time after adjournment of the court to file statement of facts and bills of exception was entered on the 26th day of March, allowing sixty days’ time in which appellant could prepare and file his bills of exception and statement of facts. Subsequently another order was granted extending the time to eighty days in which to file bills of exception and statement of facts. Under this order appellant had eighty days from the 26th day of March in which to file statement of facts and bills of exception. The bills of exception and statement of facts were not filed until the 18th of June, which was about eighty-three days, instead of eighty allowed by the court. There is no reason shown in the record why the statement of facts was not filed within the time authorized. The order of the court included as well the bills of exception as it did the statement of facts. Under this showing of the record we are of opinion the motion of the assistant attorney-general is well taken, and same will be sustained.

As the record presents the case to us, with the exceptions and evidence eliminated, there are no questions that can be reviewed or revised. The charges given by the court are applicable to a' state of case provable under the indictment. With the evidence eliminated, we are unable to say that the court erred in refusing the special requested instructions.

We find among the papers what purports to be the original instrument upon which the indictment was predicated. The record shows that there was an order entered sending up the original papers, but those found, in the record are not in any way verified by certificate of the clerk as being the original papers as used on the trial, nor is that instrument, supposedly the basis of the indictment, certified as such. In fact there is no certificate of the clerk verifying or certifying that these are the original papers. It has been the practice since State v. Morris, 43 Texas, 372, that all original papers sent up must be so sent independent of and not a part of the transcript, and verified by the certificate of the clerk as such original papers; otherwise they can not be considered. The same rule laid down by the Supreme Court in Morris v. State, supra, has been followed by this court in its decisions. Carroll v. State, 24 Texas Crim. App., 313; Brewer v. State, 32 Texas Crim. Rep., 74; Kennedy v. State, 33 Texas Crim. Rep., 183.

Under the condition of the record there-are no questions which authorize a reversal of the judgment, and it is therefore affirmed.

Affirmed.