Opinion
No. 4894.
Decided February 13, 1918. Rehearing granted March 20, 1918.
1. — Aggravated Assault — Statement of Facts — Bill of Exceptions — Notice of Appeal.
The record must contain an order allowing the filing of the statement of facts and bill of exceptions and must also show notice of appeal, but where it was shown that the omission in filing necessary papers was due to the inadvertence of the clerk the appeal is reinstated.
2. — Same — Motion for New Trial — Statement of Facts — Practice on Appeal.
The facts introduced upon motion for new trial must appear in the statement of facts, which must be filed during term time, or they can not be considered on appeal.
Appeal from the County Court of McLennan. Tried below before the Hon. James P. Alexander.
Appeal from a conviction of aggravated assault; penalty, nine months confinement in the county jail.
The opinion states the case.
Holt Sheris, for appellant.
E.B. Hendricks, Assistant Attorney General, for the State. — On question of statement of facts on motion for new trial: Bailey v. State, 65 Tex.Crim. Rep., 144 S.W. Rep., 996; Treadway v. State, 65 Tex.Crim. Rep., 144 S.W. Rep., 655; Kinney v. State, 67 Tex.Crim. Rep., 148 S.W. Rep., 783.
Appellant was convicted of aggravated assault and awarded nine months imprisonment in the county jail.
There is a statement of facts and a bill of exceptions in the record, but they were filed after the adjournment of court, and the record contains no order allowing such filing. The record is also without notice of appeal. On account of the want of this notice the appeal will be dismissed.
If it is sought to reinstate the appeal by showing notice of appeal was duly given, we call attention to the fact that it should be made to appear, if the record so shows, there was a proper order entered below authorizing the filing of the statement of facts and bill of exceptions beyond term time. It may be also noticed in this connection that the statements of facts adduced in support of appellant's motion for new trial was not filed in term time.
As the record stands the appeal will be dismissed.
Dismissed.
ON REHEARING. March 20, 1918.
On a former day of the term the appeal herein was dismissed. The defects in the transcript have been cured, and it is now shown it was an omission of the clerk in failing to copy the necessary papers in the transcript. The case will, therefore, he reinstated.
It was intimated in the former opinion that, inasmuch as the testimony set out in the record was taken on motion for new trial, it would not be considered because filed subsequent to the adjournment of the court. There was an order entered, it seems, authorizing the filing of statement of facts and bills of exception after court had adjourned, but this would not apply to evidence taken on motion for new trial. This must be filed during term time. The decisions all seem to be in accord on this question, therefore the evidence as introduced in regard to the motion for new trial will not be considered. Without this there is nothing for the court to review, and the judgment will be affirmed.
Affirmed.
PRENDERGAST, JUDGE, absent.