Opinion
No. 3335.
Decided November 18, 1914.
1. — Embezzlement — Statement of Facts.
Where the statement of facts was not filed until nearly four months after the adjournment of court, and no reason was shown why the same was not filed sooner, the same must be stricken out on motion of the State.
2. — Same — Requested Charge.
In the absence of a statement of facts, a refusal of a requested charge can not be revised on appeal.
3. — Same — Statement of Facts — Practice on Appeal.
While it may be a very serious question whether defendant should have been convicted, yet where the statement of facts was filed too late, the judgment must be affirmed.
Appeal from the District Court of El Paso. Tried below before the Hon. Dan M. Jackson.
Appeal from a conviction of embezzlement; penalty, two years imprisonment in the penitentiary.
The opinion states the case.
L.A. Dale and C.C. McDonald, for appellant. C.E. Lane, Assistant Attorney General, for the State.
Appellant was convicted of embezzlement, his punishment being assessed at two years confinement in the penitentiary.
The statement of facts was not filed until nearly four months after the adjournment of court. Appellant files an affidavit in regard to this matter, the substance of which is that he had only employed counsel to defend him in the trial court, not having in contemplation his services to perfect an appeal. When court adjourned he did not file pauper's affidavit in regard to securing statement of facts, because he says his friends had agreed to secure money sufficient to obtain the statement of facts. The money was not obtained until after the ninety days had elapsed. After this time a statement of facts was prepared and presented to the district judge, who approved the same as being correct, which statement of facts was filed practically four months after the court adjourned. Under the decisions of this court the statement of facts can not be considered.
A special charge was requested, which was refused. Without the statement of facts we are unable to determine whether there was error in refusing to give this charge. Therefore, we can not revise this question.
The writer desires to say that if the facts had been presented in time to be considered it is a very serious question whether appellant should have been convicted of the charge of embezzlement; and in fact the writer does not believe he should have been convicted.
As the matter is presented we are of opinion that the judgment must be affirmed, and it is accordingly so ordered.
Affirmed.