SPALDING v. STATE

1. — Arraignment — Presumption.

Where there was no bill of exceptions complaining of failure to comply with the statute requiring the arraignment of an accused charged with a capital offense, the statutory presumption that the defendant was arraigned applied.

Where it did not appear from any bill of exceptions that the counsel appointed to represent accused was not given one day to prepare for trial, as provided by statute, and there was no showing that counsel, so appointed, requested the delay, complaint could not be entertained on appeal of the failure to give counsel one day to prepare for trial, since the statute is not mandatory.

Complaint that accused was not furnished a special venire, and that a special venire was not waived, could not be raised by affidavits made by accused and attorney appointed by the court to represent accused long after trial.

Where no special venire had been summoned, and the jury was selected from the regular panel for the week, an accused, who raised no objection and proceeds to selection of the jury from that panel may be regarded as having waived his right to a special venire.

Conviction for robbery with firearms would not be reversed on the ground that accused was denied a statement of facts, where accused filed a pauper's affidavit to secure a statement of facts on the day when time for filing a statement of facts expired, and the only reference to the statement in the record was an affidavit of accused's attorney, made nearly five months after the expiration of the 90 days for filing the statement of facts.

ON MOTION FOR REHEARING. 6. — Record — Affidavits (Ex parte).

The statutory rules governing the preparation of appeal to the Court of Criminal Appeals must be observed and respected in the presentation of the record, and a record may not be made by ex parte affidavits.

Where the record failed to show that any issue was made in the trial court with reference to the accused's contention, on appeal, that he was not arraigned in trial court, the statutory presumption that accused was arraigned, applied.

Where an attorney appointed, in a capital case, to represent accused after conviction, refuses to prosecute appeal, the trial court would not be guilty of reversible error in failing to appoint another attorney to prosecute the appeal, unless it was shown to the satisfaction of the reviewing court that the evidence was insufficient to establish guilt, or that defendant had a meritorious defense which was ignored by the trial court in his instructions, or that incompetent and prejudicial evidence was admitted over defendant's objection, since, in absence of such showing, the presumption obtains that accused had a fair trial.

HAWKINS, Judge.

Conviction is for robbery with firearms, punishment being fifty-five years in the penitentiary.

The record is here without statement of facts or bills of exception. An affirmance of the judgment must follow unless appellant has brought himself under some exception which will prevent operation of the general rule as to records in the condition mentioned.

The indictment was returned into court on February 7, 1938. Appellant was tried on March 3d. Amended motion for new trial was filed on March 18th and was overruled on April 1st, and sentence pronounced against appellant on the same day, and notice of appeal given. There was no extension order for time to file bills of exception and the ninety days for filing statement of facts expired on June 30th.

It is suggested in the brief of the attorney now representing appellant that the statute (Arts. 491-494, C. C. P.) requiring arraignment of an accused charged with a capital case was not complied with. The record contains no affirmative showing that appellant was arraigned but Art. 847 C. C. P. provides in part that this court "shall presume * * * that the jury was properly impaneled and sworn: that the defendant was arraigned * * * unless such matters were made an issue in the court below, and it affirmatively appears to the contrary by a bill of exception approved by the judge of the court below, or proven up by by-standers, as provided by law, and duly incorporated in the transcript." No such bill is found in the present transcript. The statute therefore disposes of the suggestion as to want of arraignment.

It is further suggested in said brief that counsel appointed to represent appellant was not given the "one day to prepare for trial" as provided in Art. 494 C. C. P. It does not appear from any bill of exception that counsel so appointed requested the delay of one day to prepare for trial. It has been held that the provision of the Code of Criminal Procedure mentioned is not mandatory. Brotherton v. State, 30 Tex.Crim. R., 17 S.W. 932; Bradley v. State, 96 Tex.Crim. R., 256 S.W. 292. It is provided by Art. 11, C. C. P. that a defendant may waive any right secured him by law save a trial by jury when he enters a plea of not guilty. McKee v. State, 118 Tex. Crim. 479, 42 S.W.2d 77.

It is also suggested in appellant's brief that he was not furnished a special venire, and an attempt is made to preserve the point by affidavits of appellant and the attorney who was appointed by the court to the effect that a special venire was not waived. The question can not be raised by affidavit made long after the trial. It appears that the jury was selected from the regular panel and if any objection was urged thereto at the time of trial it is not shown by any bill of exception complaining of such procedure. If appellant "raises no objection, and no special venire has been summoned, and the regular jury for the week is called into the box and he proceeds to the selection of jurors from this panel, he may be regarded as having waived his right to a special venire." Farrar v. State, 44 Tex.Crim. R., 70 S.W. 209; Hatton v. State, 109 Tex.Crim. R., 3 S.W.2d 87; Art. 11, C. C. P.

Counsel now representing appellant urges that this judgment of conviction should be reversed on the ground that appellant has been denied a statement of facts. As stated heretofore, the ninety days for filing statement of facts expired on the 30th day of June. In an effort to show a denial of a statement of facts certain affidavits were placed in the record bearing upon that point. The attorney who was appointed by the court to represent appellant on the trial says in his affidavit. "I filed a motion for new trial and told him (appellant) and the officials that defendant wanted to appeal but that I would not represent him on the appeal unless I was paid something, and told him (appellant) he would have to get up some money for a brief. * * * I have not seen Spaulding since the date of the trial and have had nothing to do with the case." It will be observed that the attorney does not claim to have notified the trial judge that said attorney would not further represent appellant; he says he told the "officials," but specifies no one. The affidavit mentioned was not made until November 21st, 1938, which was 144 days (nearly five months) after the expiration of the ninety days for filing the statement of facts. The trial judge says appellant was sentenced on April 1st and gave notice of appeal and from that date he had heard nothing from appellant or his counsel indicating that he expected to perfect the appeal by requesting a question and answer transcript of the testimony or a narrative statement of facts until July 1st, when appellant's present attorney informed the judge that he wanted a statement of facts and that appellant had filed a pauper's affidavit to secure same. The affidavit mentioned was not made by appellant until June 30th, the very day the ninety days for filing of statement of facts expired, and it was not until July 2d that the trial judge found two bills of exception on his desk complaining because the judge had declined to order the court reporter to prepare a statement of facts. The judge refused to sign the bills, but did on said July 2d order the court reporter to prepare and deliver to appellant or his attorney a question and answer transcript of the testimony and a narrative statement of facts. No statement of facts is found in the record and the only reference thereto is found in the affidavit of appellant's present attorney made on November 21st in which he states that he does not know why the court reporter never prepared the statement of facts as directed by the trial judge. We find no affidavit from the said reporter as to whether he made the statement of facts, or if not, whether it was because the ninety days had expired before the order was made.

If the statement of facts was in the record we would still be called upon to determine whether it should be considered because it could not possibly have been prepared and filed until long after the ninety days had expired.

It is much to be regretted that questions such as are here presented should arise to trouble this court. For us to now hold that appellant's case should be reversed because of the absence of a statement of facts under the circumstances here presented would put a premium on delay by reason of the negligence of one convicted of crime who sits idly by until the time for perfecting his appeal expires, or until the spirit moves some of his friends to belatedly employ counsel who is compelled to raise questions here presented.

The judgment is affirmed.