McGee v. State

Decided January 12, 1916

Court of Criminal Appeals of Texas · decided 1916-01-12

1. Criminal Law @=>1095, 1102 — Appeal— Statement oe Facts — Bills op Exceptions —Time foe Filing — Motion to Strike. A statement of facts and bills of exceptions not filed until more than 90 days after denial of new trial and sentencing of accused, notice of appeal being given at time of sentence, will be stricken on motion. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. @=51095, 1102.] On Motion for Rehearing. 2. Criminal Law @=>1092, 1099 —Appeal-Statement of Facts — Bill of Exceptions —Power to Approve. Where accused was tried by a judge other than the regular judge, the regular judge could not approve either the statement of facts or the bill of exceptions. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 283^-2861, 2866-2880, 2919; Dec. Dig. @=>1092, 1099; Judges, Cent. Dig. § 157-] 3. Criminal Law @=>1095, 1102 —Appeal-Statement of Facts — Bill of Exceptions —Motion to Strike — Affidavit — Diligence. Where it appeared from the affidavit filed by appellant in opposition to a motion to strike out a statement of facts and bills of exceptions, which were not filed until more than 90 days after denial of new trial, sentencing of accused and the giving of notice of appeal, that the case was tried by a judge other than the regular judge, that accused waited until the return of the regular judge to the district and for some time thereafter before attempting to get him to act on the papers, and that not until after such judge had stated that he preferred the trial judge to pass on the papers did he attempt to see the trial judge in respect to the matter, such lack of diligence was shown as required that the motion bo sustained. [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. @=>1095, 1102.]

Relies on 75 Tex. Crim. 529 - Demarco v. State

Affirmed, and rehearing denied · Decided 1916-01-12

PRENDERGAST, P. J.

¶1This is an appeal from a conviction for an assault with intent to murder.

¶2[1] By law the term of court at which he was convicted could continue in session for more than eight weeks, and, as a matter of fact, as the record shows, was in session full three months. The court overruled his motion for a new trial on September 2, 1915, and then sentenced him, at which time he gave notice of appeal to this court; all of which was then duly entered. The statement of facts and bills of exceptions herein were not filed until more than 90 days after that time. Hence the Assistant Attorney General’s motion to strike out and not consider the bills of exceptions and statement of facts must be sustained. Demarco v. State, 178 S. W. 1024. This has been held many times. There is nothing in the absence of these which can be reviewed.

¶3The judgment is therefore affirmed.

¶4@»For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes