Summary
holding documents that "have neither been filed nor introduced upon the trial ... cannot [be] consider[ed] ... as part of this record"
Summary of this case from Scott v. WeemsOpinion
No. 23346.
Delivered May 8, 1946. Appellant's Motion for Rehearing Overruled (Without Written Opinion) June 12, 1946.
1. — Record.
Court of Criminal Appeals could not consider statements from county clerk upon which defendant relied to show that complaint which initiated prosecution was sworn to before an officer who did not exist and hence was defective, where statements were not offered in proof at trial nor on motion for a new trial, notwithstanding they were included in transcript.
2. — Same.
Matters which were not offered in proof at the trial, nor on motion for new trial, should not have been included in transcript.
3. — Statement of Facts — Bills of Exception.
Where case was before Court of Criminal Appeals without statement of facts and without bills of exceptions and proceedings appeared to be regular, conviction was affirmed.
Appeal from County Court at Law of Travis County. Hon. D. H. Doom, Judge.
Appeal from conviction for misdemeanor theft; penalty, confinement in jail for six months.
Affirmed.
The opinion states the case.
Wright Stubbs, of Austin, for appellant.
Ernest S. Goens, State's Attorney, of Austin, for the State.
Appellant was convicted of misdemeanor theft, and by a jury given a sentence of six months in jail.
There is neither a statement of facts nor any bills of exceptions found in the record.
Appellant urges in a brief filed herein that fundamental error is shown by the record in that the complaint which initiates this prosecution is sworn to before an officer who does not exist, and therefore is in fact no complaint such as is contemplated by law.
The jurat attached to such complaint shows that an affidavit was made by F. L. Estepp before Perry L. Jones, Assistant County Attorney, Travis County, Texas, on August 13, 1945.
There appears in the transcript furnished us herein a certified copy of the bond of Perry L. Jones, as County Attorney of Travis County, Texas, and his oath of office, both executed on January 1, 1945, showing that Perry L. Jones took the oath of office as County Attorney of Travis County, Texas, on January 1, 1945, and again a statement of the County Clerk of Travis County that the records of the County Clerk do not show the appointment of any assistants by said Perry L. Jones.
These two statements from the County Clerk being shown to have been made at the request of the defendant (appellant herein), but no file mark appearing thereon; they have no place in the transcript; they are ex parte matters, not offered in proof at the trial, nor on the motion for a new trial, and should not have been included in the transcript. They have neither been filed nor introduced upon the trial nor disposition of this case, and we cannot consider such as a part of this record.
These matters do not appear to have been called to the attention of the trial court, nor the opposing counsel, but appear to have been brought here in this court without notice or reason. They should not have been incorporated in the transcript.
The proceedings given consideration herein appear to be regular, and with nothing further properly presented for review, the judgment is affirmed.