Gowan v. State

164 S.W. 6, 73 Tex. Crim. 222, 1914 Tex. Crim. App. LEXIS 142

Opinions

HABPEB, Judge.

Appellant was tried in the District Court of Navarro County, beginning on the 30th day of September, 1912, and ending on the 21st day of December, 1912, during which term the motion for a new trial was overruled. The transcript was not filed in this court until the 15th day of December, 1913, about a year from the adjournment of the court of the. term at which he was tried, and more than a year from the date on which his trial occurred, the record showing that he was tried November 21, 1912. The law requires that those records be filed in this court within ninety days from the adjournment of court, or if the term lasts more than eight weeks, within ninety days from the overruling of the motion for a new trial. The failure of the clerks to comply with this law has caused much complaint to be made about “delay in the disposition of criminal cases.” A species of negligence had grown up in regard to forwarding transcripts, and in June of last year we had notices printed and mailed to each clerk that we would no longer countenance such negligence on their part, but would expect and require a compliance with the law by them. A. letter was received from the clerk of the District Court of Navarro County, he writing in July that he had been unable to complete the record in this case because the bills •of exception had not been filed, and that he would forward same as soon as he could get the bills. He was notified to send a transcript of the proceedings as was then properly filed and of the record in his office, but he did not do so. In December, 1913, the court’s attention being called to the fact that a year had elapsed and still the record not forwarded to this court, we ordered citation to issue commanding him to file the transcript in this case, and appear and show cause why he had not filed same within the time required by law. When the transcript was filed in this court on the 16th day of last December, the bills of exception showed to have been filed in the trial court on February 14, 1913, ten months prior to the time the record was filed in this court. We gave the clerk an opportunity to explain this matter, and the contradiction between these file marks and his letter written in July of last year. He was sworn and testified that the bills of exception were not in fact filed in his office until the 10th day of December, 1913, more than a year after the trial of the case, but under the direction of the judge of the trial court he had ante-dated their filing, and placed the file mark as of date February 14th by direction of the trial judge. It has been frequently held by this court that the trial judge or any other person has no authority or power to authorize the ante-dating of bills of exception, and statement of facts. In the case of Bryant v. State, 35 Texas Crim. Rep., 394, in an opinion by Judge Hurt, it was held: “This court, on appeal, will, whenever necessary, go behind the file marks appearing upon a statement of facts or bills of exception, in order to ascertain and determine whether the said statement of facts and bills of exception were in fact legally filed, following Spencer v. State, 34 Texas Crim. Rep., 238. And what the district judge or district attorney may have said or done, with reference to filing the statement of facts back within the time allowed by law, can not avail to exonerate the appellant from the use of diligence before expiration of the time allowed by law.” This has always been the rule of law, and it next became necessary to determine whether or not it was the fault of counsel for the appellant that these papers had not been filed properly. The testimony of the clerk shows clearly that they had not been filed within the time allowed by law—in fact not filed within twelve months after the trial. Mr. Johnson, of counsel for the State, then testified that these bills of exception were not presented to him nor the trial judge until in May, 1913, for their consideration and approval, whereas at the furthest appellant was not allowed longer time than March 18, 1913, in which to prepare them, secure their approval, and have them filed. Under such circumstances the bills of exception under the law can not be considered.

As to the statement of facts, while it shows to have been filed on January 2, 1913, yet the certificate of the stenographer shows it was not made out and certified to by him until March .7, 1913,—more than two months after the filing date. Of course, it was impossible for the statement of facts to have been filed before it was made out by the stenographer. But it was certified to on March 7th, this allowed time to present it to the district attorney and trial judge and have it filed within the time allowed by law—ninety days—or March 18th, yet the clerk testifies on oath that same" was not in fact filed within the ninety days, and Mr. Johnson says it was not presented to him within that time for his consideration, nor presented to the court for approval until after he had considered same and agreed thereto. So it too bears a false date of filing, and was not in fact filed within the time permitted by law, and must be stricken from the record. And in the absence of a statement of facts and bills of exception there is no ground in the motion for a new trial we can review.

There is a ground in the motion alleging the incompetency of one of the jurors, which fact was unknown to appellant until after the trial of the case, which ground is supported by the affidavit of appellant and two of his counsel. However, in overruling the motion for a new trial the court states he heard and considered the evidence on this ground of the motion, and overrules it, and with no evidence before us must conclude that the court did not abuse his discretion in finding that the juror was a qualified juror at the time of this trial. In the case of Jordan v. State, 10 Texas, 480, it was held: “In considering the motion, the court may judge, not only of the competency, but of the effect of evidence. There may be cases where the court might well grant a new trial, if, in the opinion of the presiding judge, injustice had been done; while, at the same time, should a new trial be refused, this court would not be warranted in reversing the judgment. The judge who presides at the trial is afforded much better and more ample means of judging of the merits of the application than the reviewing court can be. And, therefore, it is the governing rule of the action of this court, affirmed and enforced by repeated decisions, from the earliest cases upon the subject to the present time, not to reverse the judgment of the District Court refusing a new trial, unless some principle of law has been violated, misconceived or disregarded, to the prejudice of the party, or there is good reason to apprehend that injustice has been done in refusing the application. Though the District Court, in its discretion, upon the application of the accused, might have granted a new trial, if, from-the evidence and circumstances of the case, as they were apparent to the presiding judge, in his opinion, the ends of substantial justice required it; yet, from anything before us in the record, we can not say that any principle or rule of law has been infringed or injustice done.” So it can be readily seen that when the trial court heard testimony on the issue before him, and it is not brought up in the record in a way we can review it, we must presume the trial court ruled correctly. In the case of Sharp v. State, 6 Texas Crim. App., 650, this court said: “When matters of fact are involved in the rulings of the court below, such rulings will not be revised on appeal by this court unless the facts are substantiated lij' proper bills of exception. Statements in a motion for a new trial will not suffice”; citing Marshall v. State, 5 Texas Crim. App., 273; Code of Criminal Procedure, article 606.

It would perhaps be proper for us to state that the prosecuting officers and trial judges are not antagonistic to the bills of exception and statement -of facts being considered—in fact the trial judge ordered them filed back as of date within the time. But this action was unauthorized by law,—in strict violation of it, and we hope no other judge will take such action. If those who are to administer the law, do not obey its mandates but connive at an evasion of it, in what position are they then to see that others who violate the law are made to suffer for their misdeeds ? In this instance this prisoner has been compelled to remain in jail for twelve months, when, if he was entitled to have his case reversed, he ought to have been placed in position to have gained his liberty some nine months ago by giving bond. The county has been compelled to support him for twelve months, when, if his case should have been affirmed, he ought to have been in the penitentiary for the past nine months, earning his own living by labor instead of lying idle in jail, being fed and clothed by the people of Navarro County. Again, after this long lapse of time, had it been necessary to reverse • the case, the chances are that many of the witnesses would now be unobtainable, or if obtainable, at a much greater cost to the State. These and other considerations, and the fact that the law is thus written should be sufficient for all officials to see that the law is complied with, and in this way, and this way only, can we hope to prevent delay in criminal cases. If you can take twelve months to file bills of exception and the transcript in this court, then you can take two years, or three years, and if Are once go beyond the time fixed by law, then there is no end to the time that may be taken. •

We have inquired into this delay of filing the bills of exception and statement of facts closely, for if this delay had been the fault of the officers representing the State, we had intended to reverse the case, and let this be a lesson to prosecuting attorneys and officials. But as the evidence shows that the statement of facts and bills of exception were not prepared and presented to the court in the time allowed by law, appellant- must suffer the consequences of his own negligence.

Another matter: we had the clerk before us. He shows that this is his first term of office, and he was acting under the instructions of the trial judge. We thought at first of assessing against him a heavy penalty, because the authority of the trial judge would not authorize him to ignore the law, but taking everything into consideration, and his manifest sincerity and frankness in stating the real facts on examination, Ave have concluded to assess against him the cost of issuance and service of process in bringing him before this court. Hpon the payment of the costs incident thereto he will be discharged.

While under the circumstances it was not incumbent upon us to read-this record, yet we have done so, for we dislike to see an injustice done any man, even though by his negligence he was not entitled to have his ease reviewed. After reading it, we are of the opinion that the evidence Avould not only justify the verdict herein rendered, but would have sustained a verdict of murder in the first degree, with the highest penalty known to the law assessed against him. The record reeks with facts tending strongly to show a wilful premeditated killing, while his victim was plowing in his field. That appellant went there for the purpose of slaying him, and did so, and he ought to feel thankful to his counsel for their able conduct of the case, and to the jury for the mercy shown in their verdict.

The judgment is affirmed.

Affirmed.