DEMENT v. THE STATE

1. Statement of Facts — Order for Filing After Adjournment — Judge's Short Minutes.

The judge's entry in his short minutes showing that he had allowed ten days after adjournment within which to file the statement of facts does not constitute any part of the final record, and would not authorize a statement of facts filed after adjournment to be considered as part of the record.

The office and purpose of a writ of certiorari to perfect a record is to bring up matters improperly omitted from the record; it can not be used to bring up an entry in the short minutes of the judge, but only orders in the final minutes of the court.

The statute requires the minutes of the district court for each day to be read on the succeeding morning after opening of court, and where counsel is not present at the reading of the minutes, it is his duty to look over the minutes and see that all necessary orders to perfect his appeal are properly entered. It is no excuse for his failure to do so, that the clerk told him all the orders had been entered.

A great deal of diligence would be required to entitle a party to a fourth continuance. Where the fourth application was predicated upon the absence of the same witnesses, as was his application seven months before, and no diligence is shown to procure the witnesses in the interim, the continuance should be refused.

In the absence of a statement of facts it can not be determined if the testimony of any of the absent witnesses was material to defendant.

It is generally permissible to relieve officers of court from the effect of the rule where they may be witnesses, and unless the action of the court in relieving them is clearly an abuse of discretion it will not be ground for reversal.

A bill of exceptions to evidence of admissions or confessions to an officer by a person under arrest who has not been warned by the officer, to be sufficient, must set out the facts detailed by the defendant in his said statements, admissions, or confessions to the officer.

A bill of exceptions to the admission of testimony to contradict a witness must show that the evidence of the witness sought to be impeached was material. If not material, then evidence to impeach such witness would not appear to be material.

It is discretionary with the trial court ordinarily to admit testimony after the evidence has been closed, but a refusal to do so will not constitute reversible error unless injury or prejudice to the defendant is shown.

In the absence of a statement of facts, the materiality of excluded testimony can not be determined.

It is not necessary for the court in a charge on manslaughter to define an assault.

In the absence of a statement of facts it can not be determined that a charge on self-defense was not called for.

HENDERSON, JUDGE.

Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of twenty-five years; hence this appeal.

The District Court of De Witt County adjourned on the 9th of February, 1898. What purports to be a statement of facts was approved by the judge on the 14th of 1898, and was, filed by the clerk on the next day, the 15th of February. The Assistant Attorney-General has presented a motion to strike out the statement of facts, because it was filed after the adjournment of the District Court, and no order appears in the record granting ten days after the adjournment of said court within which to prepare and file a statement of facts. In reply to this, appellant has filed the affidavit of his counsel, to the effect that he applied for an order during the term, which was granted by the judge, allowing him ten days after the adjournment of said court within which to prepare and file a statement of the facts. He also shows by said affidavit that the judge did make the entry on his short minutes allowing ten days after the adjournment of the term within which to prepare and file said statement of facts, but it is shown that said order was never carried into the minutes of the court. On this statement by affidavit, appellant asks this court to consider the order as made following the ten days, or else to authorize a writ of certiorari for the purpose of perfecting the record in this respect. We certainly can not consider the record in its present shape as containing such order. The fact that the judge may have allowed the ten days, and entered the same on his short minutes, would not constitute it any part of the final record of said cause; and the affidavit showing that it was so entered on the judge's short minutes would not authorize it to be considered as a part of the record. Nor would we feel authorized to grant a certiorari on the application. The effect of that would be not to bring up the entry in the short minutes of the judge, but only the orders entered in the final minutes of the court. Nor will the case be delayed in order to perfect the record below by a judgment nunc pro tunc, and carrying the same into the final records of the court. See Lewis v. State, 34 Tex.Crim. Rep.; Quarles v. State, 37 Tex. Crim. 362; Youngman v. State, 38 Tex.Crim. Rep.; Sheegog v. State, ante, p. 126.

Appellant, however, insists that he used due diligence to have said order entered, and that, therefore, the statement of facts ought to be considered. We note that he states in this connection that was not present the next morning, when the minutes of the court were read; that he subsequently asked the clerk if all the orders had been entered, to which he received a reply that they had; and he therefore did not take the pains to look to see if the particular order was entered, but relied on what the clerk stated to him. We can not regard this as sufficient diligence. It was his duty to see that the order was entered before the adjournment of the court. The statute requires the minutes of the district court of each day to be read on the succeeding morning at the opening of the court. This rule appears to have been followed in the District Court of De Witt County. But, without any excuse, appellant's counsel shows that he was not present on that occasion. If he was not then present, he should have looked over the minutes to see that all necessary order to perfect his appeal had been properly entered.

Appellant complains of the action of the court in overruling his motion for a continuance. This appears to have been the fourth motion on the part of appellant for a continuance, and certainly a great deal of diligence would be required in order to obtain a fourth continuance. In this case no diligence was used to procure the absent witnesses. The application for continuance was made on the 17th of January, 1898. In June, 1897, an application for a continuance was made, predicated upon the absence of nearly, if not quite, all the same witnesses. Yet, after this, no diligence was used to procure their attendance. In the absence of a statement of facts, we are unable to determine whether or not the testimony of any of the absent witnesses was material for the defendant.

The matter of placing witnesses under the rule is greatly within the discretion of the trial court; and it is generally permissible to relieve officers of court from the effect of the rule. Unless it, appear very clearly that the discretion of the court had been abused, we would not reverse a case on this account.

Appellant complains of the action of the court in permitting the deputy sheriff Swift to testify as to statements made by defendant to him after the surrender and arrest of defendant. We are not exactly able to ascertain from the bill whether or not appellant, was in fact under arrest at the time of the alleged statement to the deputy sheriff. The deputy sheriff testified that he had not arrested defendant; that defendant came to him, and told him he had killed "the damn Mexican," and that he wanted to surrender, that he purposely declined to arrest him until after he had asked him about the killing. Ordinarily this would constitute an arrest; but, if we concede that he was under arrest at the time, the bill of exceptions utterly fails to inform us what statements appellant made to the officer. The bill shows that after appellant came to the officer to surrender, and told him that he had killed "the damn Mexican," he then asked him how it happened, and defendant then detailed the facts to him. We are not informed what facts were detailed. These facts, for aught we know, may have been a full justification of appellant. They may have co-incided exactly with the defense set up by him of self-defense. We are left in the dark in regard to the facts stated by the appellant. We make the same observation with reference to this bill as to the previous one, — that, even if the facts were stated, it would be impossible for us to tell how material they were, in the absence of a statement of facts.

Bill of exceptions number 4 does not show that the testimony of Tony Moro, the wife of deceased, was material. Therefore, evidence to contradict her would not appear to be material. Consequently, the court did not err in excluding the testimony of Eli Corduway. It is a matter very much in the discretion of the court to admit testimony after the evidence has been closed; and, unless the refusal of the court to allow such testimony is shown to be prejudicial, a case will not be reversed on that account. The same observation applies with reference to the testimony of Mrs. Hunter; and, with reference to the testimony of these witnesses, the materiality of the evidence can not be determined in the absence of a statement of facts.

It was not necessary for the court to define an assault. It is claimed, however, that in a charge on manslaughter, the jury would not understand how an assault could be adequate cause, unless they understood what an assault was. Not having the statement of facts before us, we can not even tell that manslaughter was in this case. We do not, however, concede that in a charge on manslaughter it is necessary for the court to define an assault. Counsel has indulged in an extensive criticism of the court's charge on self-defense; but we have examined the same carefully, and do not regard said charge as subject to the animadversions of the able counsel in this case. The charge appears to be correct and applicable to self-defense. It is nowhere a charge on the weight of the testimony, nor does it anywhere improperly circumscribe or limit the right of self-defense. But, in the absence of a statement of facts, we can not even tell that such a charge was called for. There being no errors in the record, the judgment is affirmed.

Affirmed.

HURT, Presiding Judge, absent.

[NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]