Spencer v. State

1. Statement of Facts and Bills of Exception Filed After Expiration of Time—Agreement as to.—Where the court entered an order allowing the statement of facts to he prepared and filed within ten days after adjournment, and the adjournment was on the 2nd day of July, and bills of exception appear to have been filed on June 25th, and the statement of facts on July 2nd, but the record contains an agreement of date December 28th, six months thereafter, to the following effect: “We agree that the statement of facts and bills of exceptions in the case of The State v. Willie Spencer may he filed as of the term during which the same was filed,” which is approved without date by the judge; Held, that it is evident the statement of facts and hills of exception were .not in fact filed until the 28th of December, and that they have heen antedated so as to appear to have been filed during the term; and the same will not be considered, because the method pursued shows an attempt to evade, by an agreement not authorized by law, a long established rule of practice. Such course of procedure can not be permitted. 2. Murder—New Trial—Receiving Other Evidence in Jury Room—Bloody Clothing.—Where, on a trial for murder, after the case had been submitted to and the jury had retired to consider of their verdict, the clothing of deceased, which had been put in evidence on the trial, was, on application of the jury, authorized by the court to be sent to them, in the absence of and without the knowledge of defendant and his counsel, Held, no error, it not being shown that the clothing was used by the jury in any other manner than as warranted by the evidence, or that any new facts in connection therewith were discovered and discussed by the jury, or that defendant was prejudiced thereby. Defendant must show prejudice in such matters before he can be heard to complain. Following McDonald v. The State, 15 Texas Criminal Appeals, 499, and Bell v. The State, 32 Texas Criminal Reports, 440. ON MOTION FOB EEHEAKING. 3. Agreement—Rules of Court—File Marks on Papers—Practice.—It is provided by District Court Rule 47, that no agreement in a case will be enforced unless it is in writing, and filed as part of the record. Held, that an agreement which has been signed, approved, filed, and acted upon by the parties—though it may have been improperly filed, and could not legally be enforced—can and will be looked to by this court to determine whether or not the file marks upon certain papers in the record therein mentioned were filed as of the date they purport to have been filed. And this court is not limited or concluded in its investigation of this matter by the file mark placed by the clerk upon such papers. 1 4. Statement of Facts—Filing Same—Practice on Appeal.—Under an order of court, ten days after adjournment is the extreme limit allowed by law within which to prepare and file a statement of facts, and the trial judge has no authority to increase the time; and this court will not lend its aid in either ignoring the plain letter of the law, or approve of any connivance on the part of the trial courts in a departure from the statute on the subject.

Appellant was indicted for the murder of one Frank White, on May 4, 1894, in Wichita County. At his trial he was convicted of mnrder of the second degree, his punishment being assessed at twelve years’ imprisonment in the penitentiary. In view of the disposition made of the appeal, no statement can be made as to the evidence adduced at the trial. The agreement with reference to the filing of the statement of facts and bills of exception will be found copied in the opinion. After the first opinion below, affirming the judgment, was handed down, counsel for appellant, on the 27th day of March, filed a motion for rehearing, as follows: “1. In its said judgment of affirmance, the court erred in refusing to consider the bills of exception and the statement of facts incorpo-rated in the transcript in said canse on file in this court; because, (1) as is shown by the affidavits attached hereto and made a part of this motion, every bill of exception contained in said transcript, except bill number 2, was in fact agreed to by counsel both for the prosecution and defense, approved by the district judge, and filed by the district clerk on June 25, 1894, the day upon which they purport to have been filed, and before the adjournment of the term of court. (2) The agreement between counsel who represented the prosecution and those who represented the defense, entered into before the adjournment of the term of court at which defendant’s conviction was had, waived the filing of the statement of facts and bill of exceptions number 2 within the time prescribed by statute and allowed by the order of the court, and said portions of the record actually filed according to the terms of that agreement, and with the approval of the trial judge, are entitled to be considered on this appeal. (3) Should it be held that such agreement could not amount to a waiver of a statutory provision, the statement of facts and bill of exceptions number 2, having been prepared, agreed to, approved, and filed at the time and under the circumstances and conditions detailed in said affidavit, they are entitled to be considered under the exception contained in article 1379a of the Revised Civil Statutes. “2. The court erred in holding, that there was no error in the trial judge allowing the clothing of the deceased tobe examined by the jury in the jury room during its deliberation; because such action by the jury, considered in the light of the facts shown in bill of exceptions number 3, was manifestly prejudicial to defendant’s rights, and violative both of the rules of evidence and of trial practice. “ Wherefore, appellant respectfully urges the court to reconsider its opinion striking out appellant’s bills of exception and the statement of facts, and to consider the questions raised on this appeal, which, it is respectfully submitted, will require a reversal of the cause.” “The State of Texas, ) “Wichita County. j “I, L. H. Mathis, being duly sworn, on oath state I am of counsel for appellant in cause number 642, in the third assignment of the Court of Criminal Appeals of the State of Texas, styled Willie Spencer v. The State of Texas; that all the bills of exception which appear in the transcript in said cause, except bill number 2, were acr tually prepared, agreed to, and signed by counsel for the prosecution and defense, approved by the trial judge, and were handed to the district clerk to be filed—all before or on the 25th day of June, 1894, the day upon which they purport to have been filed; that all of said bills (except number 2) have remained continuously thereafter among the papers of the case in the hands of said clerk. Affiant does not remember to have seen bills numbers 1 and 3 actually filed by the clerk, but knows that they were agreed to by counsel for the prosecution, who signed the same, and that the trial judge indorsed his approval thereon on or before said June 25, 1894, and that they were, on or before that day, left with the clerk to be filed with the other three bills which were actually filed on said June 25, 1894, and have since continuously remained with the papers. That said bills numbers 1 and 3 should have been filed on the day when they purport to have been filed, and affiant believes they were, but is unwilling to state absolutely that such- is the fact, not having seen them filed. “Affiant further says, that the agreement found in the transcript in said cause was actually entered into between counsel for the prosecution and defense before the adjournment of the term of court during which appellant was convicted, by the terms of which (on account of conditions then existing), the State of Texas, through its authorized and acting counsel, agreed to waive the condition that the statement of facts and bill of exceptions number 2 should be filed within the ten days allowed by the court, and agreed that the time in which said statement of facts and said bill might be filed might be extended to such time as said counsel for the prosecution might deem reasonable; that before the adjournment of said term of court, the trial judge informed affiant that, as was customary with him, he would respect such au agreement made by counsel on both sides, and would approve a statement of facts or bill of exception that might be agreed to by both sides, though presented for approval after the ten days from the adjournment. Affiant says, that such agreements are usual and customary in both civil and criminal cases in Wichita County, and throughout every county in the State where affiant has or has had any knowledge or information, and such agreements have been uniformly respected both by the trial judge and the clerk, and in this cause, appellant and his counsel relied upon such agreement. “L. H. Mathis. “Sworn to and subscribed before me, this March 27, 1895. “L. H. Hughes, Co. Clerk Dallas Co.” And on the 23rd day of April, counsel also filed the following motion to strike out the agreement with regard to filing the statement of facts and bills of exceptions: “How comes Willie Spencer, appellant, and says the court ought not to consider the purported agreement as to the filing of the statement of facts and bills of exception in the case, which said purported agreement appears to have been filed in this cause December 28, 1894, for the following reasons: “1. The instrument called an agreement is not an agreement or contract of any kind, and is not signed by Willie Spencer, appellant, or by any of his attorneys, and is not signed by the district attorney, and is only signed by Carrigan & Montgomery, who are not now and never have been attorneys for said Willie Spencer. “2. Said instrument is not in the record by order of the trial court or this court, and it does not purport to be a part of the court record in this cause, and was not filed by the clerk of the District Court of Wichita County during the trial of this case, and was not approved by the trial judge in this case at any time. That in fact said instrument was filed by the district clerk December 28, 1894, long after the adjournment for the term of the court in which appellant was tried. All of which facts appear in the record in this cause. “Wherefore, appellant says the purported agreement should be stricken out of the record, and ought not to be considered by this court as a part of the record in this cause.”