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79 Tex. Crim. 437

186 S.W 336

Sorrell v. State

Court of Criminal Appeals of Texas

Decided April 5, 1916

Court of Criminal Appeals of Texas · decided 1916-04-05

<p>1. — Murder—Continuance—Motion for Hew Trial — Statement of Facts — ■ Practice on Appeal — Presumption.</p> <p>Where, upon appeal from a conviction of murder, the record disclosed that the court below heard evidence both on the application for continuance and the motion for new trial based thereon, but this evidence was not disclosed by the record, it must be presumed by this court that the evidence heard in the court below clearly justified the action of the court in overruling said application and motion, and that in the absence of a proper bill of exceptions or statement of facts of the evidence introduced and filed during term time, there was no reversible error. Following Black v. State, 41 Texas Crim. Rep., 185, and other cases.</p> <p>¡3. — Same—Continuance—Motion for Hew Trial — Practice in District Court.</p> <p>But even if this court considers the defendant’s bill of exceptions not filed in term time but nearly two months after the term of the court had adjourned; still as qualified by the court, by which the defendant is bound, there was no merit either in the application for continuance or the motion for the trial based thereon; as the same showed a want of diligence; that the absent witness was a transient person; that the testimony claimed was not probably true; that the witness would not have testified as claimed, and for other grounds.</p> <p>B. — Same—Continuance—Motion for Mew Trial — Rule Stated — Discretion, of Court.</p> <p>Ho application for a continuance shall be granted as a matter of right, and the truth as well as the merits thereof and its sufficiency is addressed to the sound discretion of the court; neither shall a motion for a new trial be granted after an application for a continuance is overruled, unless the testimony of the absent witness is material and probably true, and this is left to the sound discretion of the court.</p> <p>4. —Same—Continuance—Rule Stated — Diligence.</p> <p>The law requires a rigid compliance with its exact terms prescribed for an application for continuance, and if there be a lack of diligence, apparent from the application or otherwise, its mandate is inexorable and the trial must proceed. Following Skipworth v. State, 8 Texas Crim. App., 135.</p> <p>5. —Same—Rule Stated — Continuance.</p> <p>It devolves upon the defendant to show, affirmatively and distinctly, that he has used all the diligence required by law to obtain his witness, and the State is not required to show a want of diligence in opposition of a continuance. Following Walker v. State, 13 Texas Crim. App., 618.</p> <p>6. —Same—Continuance—Burden on Defendant.</p> <p>The onus is upon the defendant to establish the exercise of diligence in support of an application for a continuance, and the burden is upon him or the party seeking a continuance to show himself entitled to it by definite, exact and certain averments. Following Long v. State, 17 Texas Crim App., 128.</p> <p>7. —Same—Continuance—Inference—Presumption.</p> <p>The courts will not supply by inference and presumption allegations not contained in an application for a continuance; the application must he complete within itself, and if presumptions are indulged in, they must be decided in favor of the rulings of the court. Following Massie v. State, 30 Texas Crim. App., 64.</p> <p>8. —Same—Continuance—Rule Stated — Diligence.</p> <p>The accused can not cease his diligence to secure his witness when the trial has begun, but he must continue it up to the very time, at least until the arguments are concluded. Following Mitchell v. State, 36 Texas Crim. Rep., 278.</p> <p>S. — Same—Practice on Appeal- — Motion for New Trial — Continuance.</p> <p>This court will not reverse the judgment of the lower court, refusing a continuance or overruling a motion for new trial thereon, unless it is made to appear by the evidence adduced thereon that the proposed absent testimony was relevant, material, and probably true.</p> <p>10. —Same—Continuance—Case Stated.</p> <p>Where, upon trial of murder, it appeared from the record on appeal that the court below overruled defendant’s application for a continuance on the ground of lack of diligence; that even if the witness had been obtained he would -not probably have testified as claimed, and if he had it would have been untrue; that he was a transient person, and no affidavit was secured to the motion for new trial to show that the absent witness would testify as claimed by defendant, there was no error in overruling the motion for new trial.</p> <p>11. —Same—Bills of Exception.</p> <p>Where the bills of exception to the admission of testimony, the argument of counsel and the charge of the court were so qualified as to present no error, there was no reversible error.</p> <p>13i — Same—Evidence—Conversation.</p> <p>. Where, upon trial of murder, defendant introduced testimony of a part of a conversation which the witness had with the deceased shortly before the homicide as to threats he made against defendant, the State -on cross-examination had the right to introduce in evidence the balance of the conversation of the deceased at the time.</p> <p>13. —Same—Evidence—Bill of Exceptions.</p> <p>Where the bills of exception were to the mere asking of some questions propounded by the State to the witnesses, to which the defendant objected, and the court sustained his objections, and the witnesses were not permitted and did not answer the questions, there was no reversible error. Following Huggins v. State, 60 Texas Crim. Rep., 214, and other cases.</p> <p>14. —Same—Argument of Counsel — Rule Stated.</p> <p>The rules pertaining to the argument of counsel as laid down by this court are well understood, and where the bills of exception to the argument of counsel failed to show any error, and the court, moreover, charged the jury not to consider the arguments of counsel to which defendant excepted, there was no reversible error. Following Mooney v. State, 76 Texas Crim. Rep., 539, and other cases.</p> <p>15. — Same—Charge of Court — Requested Charges — Provoking Difficulty.</p> <p>Where, upon trial of murder, the evidence raised the issue of provoking a difficulty, the court properly charged thereon, and besides the court correctly applied the law to the facts of the case, both in his main charge and defendant’s requested charges which were applicable to the facts, there was no reversible error.</p> <p>16. —Same—Sufficiency of the Evidence.</p> <p>Where, upon trial of murder, the evidence sustained the conviction, under a proper charge of the court, there was no reversible error.</p> <p>17. —Same—Motion for Rehearing — Statement of Facts — Bills of Exception.</p> <p>Where, for the first time, the appellant in his motion for rehearing moved to strike out all the bills of exception and the statement of facts in the record on the ground that they were not approved and signed by the trial judge, and prayed for a reversal of the judgment because he was deprived of these documents without fault on his part, but it appeared from the record, the affidavits, lette'rs, etc., on file in this court that said motion was not well taken, the same is overruled,</p> <p>18. —Same—Statement of Facts — Bill of Exceptions — Trial Judge — :Want of Diligence.</p> <p>Where it appeared from the record on appeal from a conviction of murder, that the regular judge had excused himself and a special judge had qualified and presided over all the proceedings of the trial, which consumed.some five weeks, when the court adjourned, and the presiding judge became ill and some six weeks thereafter died; that defendant’s attorneys did not use the proper diligence in getting the bills of exceptions and statement of facts approved by the judge who tried the case, or to prove up such bills by bystanders, or use proper diligence in getting the regular judge to take proper action in the premises, the motion for rehearing must be overruled.</p> <p>19. —Same—Statement of Facts — Bill of Exceptions — Motion for Rehearing — Signature.</p> <p>Where the judge who tried the case became ill after adjournment of the court, but was at times during his illness capable of transacting his business, and during the time of his illness consented that the clerk of the court sign the judge’s name to the statement of facts and bills of exception, which was done, but soon thereafter the trial judge became worse and died, and said statement of facts and bills of exception were filed by defendant’s attorneys, and considered by this court iu affirming the judgment, and it appeared from appellant’s motion for rehearing that the attorneys could have obtained either from the judge who tried the case as special judge, or from the regular judge of the district, a properly signed statement of facts and hills of exception, by using proper diligence. Held, that the question as to whether the clerk of the court could sign the judge’s name to these documents, under the circumstances, need not he decided and no opinion is given thereon.</p> <p>20. —Same—Attorney and Client — Statement of Facts — Bills of Exception.</p> <p>Where, upon trial of murder, defendant had a number of attorneys to represent him, and it appeared that after trial the preparation of the bills of exception and the agreement to the statement of facts were left to one of the attorneys and one of his law partners, who attended to the whole matter for the defendant and his attorneys, all were bound thereby, and the defendant and his other attorneys can not claim a want of personal knowledge as to these matters.</p> <p>21. —Same—Trial Judge — Successor—Bills of Exception — Statement of Facts — Mandamus—Estoppel.</p> <p>Ordinarily, the trial judge, whether special or regular, when alive and mentally and physically able to act, must sign and approve bills of exception and statements of fact arising during the trial, and this even after his time of office expires; but the defendant and his attorneys must use all diligence necessary to procure these documents; and where the trial judge died some six weeks after the adjournment of the court, his successor had the power and it would have been his duty upon defendant’s application or his attorneys to have passed upon said bills of exception and statement of facts, and he could have been compelled by mandamus to do so. However, the defendant and his attorneys in the instant case failed to use proper diligence either to obtain the approval of the trial judge or his successor, and therefore can not complain of the action of this court in passing upon these documents although not regularly signed and approved by the trial judge or his successor, and the motion for rehearing to reverse the judgment must be denied, whether these documents are considered or stricken from the record.</p> <p>22. —Same—Decisions Hot in Conflict — Practice in District Court — Cases Distinguished.</p> <p>The decision of this court in the instant case is in no way in conflict with the following eases on the question of approving statements of fact and bills of exception: Richardson v. State, 71 Texas Crim. Rep., 111; Porter v. State, 72 Texas Crim. Rep., 71; Allen v. State, 72 Texas Crim. Rep., 277; Kaufman v. State, 72 Texas Crim. Rep., 455; McGee r. State, 182 S. W. Rep., 309.</p>

Cited by 1 later decisions — most recently November 1971

1 state decisions

Relies on Watkins v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1916-04-05

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¶1 ON REHEARING.

¶2 May 31, 1916.

PRENDERGAST, Presiding Judge.

¶3 The motion for rehearing was Sled and submitted several weeks ago. A decision on it was deferred to give each side an opportunity, and they were invited to do so, to file whatever answer affidavits and brief they desired. Each side has fully availed itself of this opportunity, and has filed affidavits, original letters, documents and briefs presenting their respective sides and opposing the other. We have carefully considered all these matters and made a careful and thorough investigation of the question.

¶4 The original opinion was delivered April 5, 1916, affirming the case. After its original submission by briefs and oral arguments for both sides, the court held the case some two months under consideration before delivering the opinion. Each member of the court personally read and studied the record and the questions and briefs of both sides. 'The case was tried in the lower court in October, 1915, and the motion for new trial was overruled on October 15, 1'915, at which time ■at the time, at his instance, entered an order allowing sixty days Thereafter within which to file bills of exceptions and a statement of facts. There appears in the record a large number of bills of excepTions, each of which on its face appears to have been properly allowed ■and signed by the trial judge. There also accompanies the record a full statement of facts, which shows on its face to have been agreed To and signed by all of appellant’s attorneys — one firm of three members and three other individual attorneys, as attorneys for appellant— ■and also signed by the district attorney and two other attorneys in behalf of the State. This also appears on its face to have been regularly and properly approved and signed by the trial judge. These documents were filed in the lower court December 11, 1915. and in this court January 12, 1916.

¶5 No intimation in any way by either side, or any attorney for either side, was then made to this court, that the approval of said bills and statement of facts, was other than in every way regular and so approved, allowed and signed by the trial judge before they were filed in the lower court. Of course, under these circumstances, this court *449 fully considered all of them in deciding the case and rendering the opinion.

¶6 The first time any intimation was made to this court that said documents were other than as stated, was April 19, 1916, when appellant filed his motion for rehearing. The sole ground of that motion is to strike out said bills and statement of facts because they were not approved and signed by the trial judge, and reverse this case because he was deprived of them without fault on bis part and after he had used all the diligence to properly procure them required of him by law.

¶7 It is unnecessary to detail the several affidavits, letters, etc., which are attached and made part of the respective pleadings of the parties •constituting the motion for rehearing and resistance thereof. Instead, we will succinctly give the conclusions we have reached therefrom, and the record, other than said documents.

¶8 Hon. E. M. Smith was the judge of the judicial district of which Smith County, where this trial occurred, was a part. For reasons .satisfactory to himself and the attorneys he did not hold the court at the time this trial was had, but Flon. J. S. Mellwaine was duly elected and qualified as special judge, before whom the trial occurred. It seems he held the whole term of this court, which consumed some five weeks, and the term adjourned the next day after he overruled the motion for a new trial. During this trial, he became nervous and somewhat ill, of which all of the attorneys and appellant himself had actual notice and knowledge. Shortly after the court adjourned, Judge Mellwaine and his wife went to Mineral Wells, where they remained two weeks on account of his illness. They returned to Tyler therefrom on November 17th, and he was in his office two days transacting his business. Late in the afternoon of November 18th, in company with liis brother, he went to a sanitarium at Arlington Heights, near Fort Worth, where he remained until his death, which occurred December 25, 1915. For a while after reaching that sanitarium he did well— received and read his mail and magazines. After he had been there some two weeks, his wife went to him, staying a day or two, and finding he was doing well returned home in Tyler. While in the sanitarium, for a while, he would have worse days than others, and one day while in his worse condition onp of appellant’s attorneys, Judge Simpson, who had the bills and statement of facts in charge, ’phoned to the attending physician to know if the judge was in condition to ■consider and pass upon them. The doctor at that time told the attorney ne was in no condition to attend to. such matter on that day. A day or two later, when in better condition, appellant’s attorney again ’phoned the attending physician and had him state the matter to the judge and to know if he would authorize the district clerk at Tyler to sign his name, allowing and approving said documents, and the judge thereupon stated that while it was somewhat irregular, he would consent that the clerk sign his name thereto, which appellant’s attorneys thereupon had the clerk to do. Eight after this, his wife visited *450 him in the sanitarium, to whom he mentioned the matter of authorizing and directing the clerk to sign his name to said documents and of the conversation between the attending physician and himself about the matter and she says he then seemed to understand it. Soon after this he became much worse, unconscious, and remained in that condition until he died at the time stated.

¶9 Neither appellant nor his attorneys at any time ever sought to have Judge Mellwaine, or the regular judge either, to extend the time for filing the bills of exceptions to ninety days, or other than the,sixty days allowed, as stated. The law, without any order whatever, gave him the right to procure and file a statement of facts at any timé within ninety days from the overruling of his motion for a new trial.

¶10 . Nor did appellant or his attorneys at any time ever attempt to get the regular judge of the court to act upon or approve either their bills or the statement of facts nor other than as hereinbefore stated. Neither did they attempt at any time to procure bills of exceptions by bystanders. Nor' did they attempt to show at any time that they could not have done so.

¶11 Two of appellant’s attorneys only sign the motion for rehearing. They and appellant himself show that they had no personal knowledge how Judge Mcllwaine’s signature was procured to. said documents, and that they did not learn it until some time afterwards. But it is clearly shown that the preparation of the bills and the agreement to the statement of facts was left to Judge Simpson and one of his partners, who attended to the whole thing for all attorneys and appellant. It was they, and especially Judge Simpson, who procured the approval and signature of the judge. Under the circumstances, unquestionably the appellant himself and the other attorneys can claim no advantage whatever because of any lack of knowledge on their part, but appellant and they are as equally bound thereby as Judge Simpson and his partner could, or would be. Practically the universal practice in criminal cases is for the attorney for the appellant, and not appellant himself, to prepare all bills of exceptions and a statement of facts, and never at any time submit them to the appellant himself but all such matters are settled exclusively between the attorneys for the respective sides and the trial judge, or judge of the court; so that whatever was done in this case by appellant’s attorneys is in law and in conscience the same as if done by himself.

¶12 The law and the principles applicable to what judge must approve and sign bills and statements in ordinary cases where the trial judge, whether special oh regular, is still alive and mentally and physically able to act, are so well settled that we will not attempt to cite the authorities on the subject, but we will state some of the rules.

¶13 Under the circumstances just stated, it is -necessary for the judge before whom the trial was had to approve and sign these documents; and if the term of the regular judge ends before he acts upon them and he is succeeded by another regular judge, or when the trial occurs before a special judge, the bills must be signed by the judge who tried *451 the case, even though his term of office expires and he is succeeded h)r another regular judge, or if the term of court at which the trial was had before a special judge ends, or the regular judge succeeds him on the court, such special judge, though after his term expires, must approve and sign such documents.

¶14 Ordinarily, no statement of facts or bills can or will be considered by this court, unless properly approved and signed by some judge authorized to do so; in other words, the attorneys or the parties themselves, can not by agreement dispense with the approval and signature of some judge authorized to act in such matters.

¶15 If an appellant is deprived of either his bills or a statement by the opposite side or the trial judge, without any fault on his part and when he has used all the diligence necessary on his part to procure such documents, he is entitled to a reversal; but as stated, he must use all diligence necessary to procure these documents, and the fault for failing to procure them must not lie at his door. If he fails and the fault is his or his attorney’s, then he is not entitled to a reversal, even though he gets neither bills of exceptions nor a statement of facts, nor both. Mr. Branch lays down the correct rule and cites some,forty cases establishing it. If the failure to have a statement of facts (or bills) filed in time is due to neglect of defendant, or if he fails to show diligence, or fails to exhaust the means provided by law to obtain these documents, they will not be considered, nor in such event will the judgment be reversed for failure to obtain them. Branch’s Ann. P. C., sec. 597, p. 206.

¶16 Strange as it may seem, after the most diligent search, we have been unable to find any case in either this court or the civil courts of this State, and neither side has cited any where it has arisen and been decided, whether or not the regular, or succeeding judge, can approve such documents in case of the death or insanity of the judge who tried the cause. The courts of other States and jurisdictions are not in harmony on the subject. All the cases and authorities on the subject discuss bills of exceptions, not statements of facts.. The rules, however, that would apply to the one would equally apply to the other. The late work of Stand..Ency. of Pro., vol. 4, p. 333, says: “Many courts hold that where the judge dies or goes out of office by resignation or because of expiration of his term, that the bill must be signed by his successor,” citing New York Life, etc., Co. v. Wilson, 8 Peters, 291, 8 L. Ed., 949, and the decisions of some thirteen States establishing this rule. To the same effect is 1 Thompson on Trials, sec. 214, and other sections in that chapter; and also 3 Ency. of P. & P., p. 455. The United States Supreme Court in the case cited supra, says of the judge succeeding the judge who tried the cause: “He as the successor of his predecessor, can exercise the same powers and has a right to act on every case that remains undecided upon the docket as fully as his predecessor could have done. The court remains the same, and the change of the incumbents can not and ought not in any respect to injure the rights of litigant parties.” In that case, the court *452 awarded a writ of mandamus, compelling the successor of the trial judge to sign the judgment rendered by his predecessor. We refei also and approve the reasoning and decision in Conway v. Smith Merc. Co., 6 Wyo., 327, 44 Pac. Rep., 940, 49 L. B. A., 201. See also Hays v. McNealy, 16 Fla., 406; Bullock v. Neal, 42 Ark., 278; Watkins v. State, 37 Ark. 370; Cowall v. Altchul, 40 Ark., 172; Shields v. Horbock, 40 Neb., 103; Turner v. Hearst, 115 Cal, 394; Railway Co. v. Rogers, 48 Ind.,,427. We think it clear that Judge Smith, the regular judge, was, in law as well as in fact, the successor of Judge Mcllwaine as to everything pertaining to this case when the latter judge died, and that he had the power, and it would have been his duty, had the appellant applied to him for that purpose, to have passed upon the said bills and statement of facts; and if he had refused, this court upon proper application to' it for that purpose, would by mandamus have compelled him to do so. But none of this was done, or attempted to be done, by appellant, or his attorneys. There would have been no difficulty whatever in Judge Smith intelligently and with full information passing upon all these documents. A regular court stenographer reported the case fully under the law. From this report Judge Smith could unquéstionably' have ascertained all of the testimony introduced on the trial, and in addition could have thereby passed upon every hill and made every qualification thereto that was made to the bills herein. In addition to this, the attorneys for both sides agreed in ■writing and signed and approved the statement of facts as the true statement of all of the testimony introduced on the trial, and the attorneys for both sides agreed to .all the bills and the qualifications thereof which were made; and Judge Smith also could have granted, if necessary, thirty days longer for the- attorneys or himself to have passed upon said bills of exceptions. This court has always recognized as valid such an order made by the regular judge when a special judge or another judge whom he succeeds tried the cause. Such an order is not one which the trial judge alone could have made. Of course, under the statute, if Judge Mcllwaine had not died or become wholly mentally incapable to pass upon said documents, then he alone, under the statute, would have had the right to have passed upon them. Our decision herein is in no way in conflict with Bichardson v. State, 71 Texas Crim. Rep., 111; Porter v. _ State, 72 Texas Crim. Rep., 71; Allen v. State, 72 Texas Crim. Rep., 277; Kaufman v. State, 72 Texas Crim. Rep., 455, or McGee v. State, 78 Texas Crim. Rep., 636, 182 S. W. Rep., 309. In the Bichardson ease, just cited, we purposely said: “If such a contingency should arise where it would be impossible to secure the signature and approval of the trial judge, such as death, removal beyond the limits of the State, or other cause, rendering it impossible to secure his approval, a different question might be presented.” That different question is here presented, and we decide in accordance with authority and reason. Besides this, without detailing it, there was much other delay and negligence of the appellant even while Judge Mcllwaine lived, which would have prevented a reversal because he *453 did not sooner present the bills and statement of facts and have Judge McIIwaine sign the same before he became incapacitated or died. Many decisions of this court so hold. We cite some of them: Turner v. State, 22 Texas Crim. App., 42, 2 S. W. Rep., 619; Henderson v. State, 20 Texas Crim. App., 304; Brant v. State, 35 Texas Crim. Rep., 395, 33 S. W. Rep., 978, 36 S. W. Rep., 79; Bell v. State, 31 Texas Crim. Rep., 521, 21 S. W. Rep., 259; Bio jas v. State, 36 Texas Crim. Rep., 182, 36 S. W. Rep., 268; George v. State, 25 Texas Crim. App., 229, 8 S. W. Rep., 25; Monk v. State, 38 Texas Crim. Rep., 602, 44 S. W. Rep., 158; Dennis v. State, 41 Texas Crim. Rep., 160, 53 S. W. Rep., 111; Adams v. State, 41 Texas. Crim. Rep., 366, 60 S. W. Rep., 255; Shaffer v. State, 65 S. W. Rep., 1072; Ashman v. State, 74 S. W. Rep., 317; Murphy v. State, 45 S. W. Rep., 719; Bracy v. State, 49 S. W. Rep., 598; Farris v. State, 26 Texas Crim. App., 107, 9 S. W. Rep., 487; Aistrop v. State, 31 Texas Crim. Rep., 467, 20 S. W. Rep., 989; Jones v. State, 163 S. W. Rep., 75; Gowan v. State, 73 Texas Crim. Rep., 227, 164 S. W. Rep., 6; Laws v. State, 73 Texas Crim. Rep., 287, 164 S. W. Rep., 1015.

¶17 So that if we should strike out said bills and statement of facts and not consider them, appellant would not be entitled to a rehearing herein, nor to the reversal of this cause because he failed to get them, his failure being due to his own neglect, as shown.

¶18 Again., so far as the bills are concerned, if the approval of them by Judge McIIwaine should be held invalid, it would have been appellant’s duty, and the proper diligence would require him, to prove up such bills by bystanders. He in no way attempted to do this. Hor does he- in any way intimate that he was unable to do so.

¶19 Further, the State contends that, under the circumstances of this case, appellant is estopped to now, at this late day, have said bills and statement struck out and claim a reversal because he was deprived of them, claiming that he was deprived of neither, because he got the full benefit of all of them, and he does not claim that any of them are in any particular wrong or did not correctly and fully state the facts and the matters therein. We are inclined to believe that the State’s contention is correct.

¶20 Again, the State contends, not without show, that the signature of Judge McIIwaine to said documents, under the circumstances, should be held sufficient to properly authenticate them, but it is unnecessary for us to decide that question now.

¶21 For years now every district court has had a sworn official court stenographer, whose duty it is, and who does, take down in shorthand and transcribe all the testimony and all the proceedings of every trial. Such reports by stenographers are relied upon by the attorneys for both sides and the judges for complete, full and accurate information and knowledge of everything that occurred on the trial. From this data practically exclusively all statements of facts and -bills of exceptions are prepared, and the judge gets therefrom whatever is necessary to explain and qualify bills of exceptions, and it is practically pro *454 cured from no other source. Hence, it is the case that all statements of facts and bills of exceptions, when cases are appealed, are prepared and filed after the adjournment of the court and within the time authorized by law or the order of the court. If appellant’s contention should be sustained, then the inevitable effect of it would be, if any judge whb. held a whole term of court or tried any particular case should die or become insane, and his successor could not pass upon ■statements of facts and bills of exceptions if the trial judge had not done so before, that the whole work of the term or of the particular ■case would practically be a nullity. This would result in such an injustice to every litigant in every case, that no such doctrine should be held, unless it is imperative under the law that it should be. We think that neither the law nor justice requires or would justify such a holding by this court. In fact, we are thoroughly convinced that under the law the successor of such judge dying or becoming insane would unquestionably have the power and authority, and it would be Bis duty, to complete the work of such deceased or insane judge.

¶22 Under the circumstances of this case, we are clearly of the opinion that the appellant is not entitled to a rehearing, nor to a reversal of this case, whether said bills and statement of facts were properly procured or not, and whether or not they should be struck out and not considered and the order will be accordingly entered overruling his motion.

¶23 Overruled.

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