Opinion
No. 18218.
Delivered May 27, 1936.
1. — Bills of Exception — Rule Stated.
Court of Criminal Appeals was bound by the recitations in the bills of exception, and would not look to statement of facts to determine the correctness of such bills, where they were approved by the trial court without qualification.
2. — New Trial.
If trial judge realized that he had made an error, as shown by his certificate to the bills of exception, he should have granted a new trial.
3. — Theft — Bills of Exception.
Where, in prosecution for theft, the bills of exception on appeal were without qualification and the trial judge certified that he erred in refusing to grant the defendant a continuance for absence of three important witnesses and also erred in reference to matters complained of in other bills of exception, Court of Criminal Appeals was bound to reverse conviction.
Appeal from the District Court of Goliad County. Tried below before the Hon. J. P. Pool, Judge.
Appeal from conviction for theft of property over the value of $50.00; penalty, confinement in penitentiary for two years.
Reversed and remanded.
The opinion states the case.
W. C. Austin, of Fort Worth, and Ghent Sanderford, of Austin, for appellant. Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The appellant was convicted of the offense of theft of property over the value of fifty dollars, and his punishment was assessed at confinement in the state penitentiary for a term of two years.
By bill of exception number one appellant complains of the action of the trial court in overruling his application for a continuance based on the absence of three important witnesses. The court certifies that he erred in refusing to grant the defendant a continuance.
Bills of exception numbers three, four and five are in the same condition. In each of said bills the court certifies that he erred in reference to the matters complained of. All of said bills are without qualification. This court has consistently held that it is bound by the recitations in the bills of exception and will not look to the statement of facts to determine the correctness of said bill when the bill of exception is approved by the trial court without qualification. If the trial court realized that he made an error as shown by his certificate to the bills of exception, he should have granted a new trial. In the case of Bryan v. State, 70 S.W.2d 715, this court said: "In view of the certificate of the trial judge to the effect that there was no evidence supporting the argument, and that same was calculated to mislead the jury and bring about a verdict of conviction, we are constrained to hold that the bill of exception manifests reversible error." In the case of Cooper v. State, 24 S.W.2d 427, this court speaking through Judge Lattimore said: "It is one of the unsolved mysteries to this court why trial judges will refuse new trials and permit the expense and delay of appeals to this court, when they themselves certify that matters complained of which transpired upon the trial were injurious to the rights of the accused and prejudicial. This court has no option in such case other than to reverse." See Traylor v. State, 47 S.W.2d 310; Jeters v. State, 77 S.W.2d 231; Lemons v. State, 75 S.W.2d 878.
We think that the indictment is sufficient to charge the offense of theft.
For the reasons stated, the judgment of the trial court is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.