Consideration of appellant's bills of exception on original submission caused a reversal of the judgment to be announced on June 14, 1933. Upon consideration of the state's motion for rehearing our attention was directed to confusion in the record regarding the dates of overruling the motion for new trial and notice of appeal which led us to believe the bills of exception had not been filed in time and could not be considered, which resulted in granting the state's motion and ordering an affirmance.
In the transcript on page ten the date of the sentence is February 3, 1933. Following the sentence and as a part of the same order there appears these words: "Defendant's motion *Page 646 for new trial overruled, deft, excepts and gives notice of appeal to the Court of Criminal Appeals at Austin, Texas, and is allowed fifty days to file bills of exception and statement of facts."
On page fourteen of the transcript there is a formal order overruling the motion for new trial which is dated February 28, which would make it appear that appellant was sentenced twenty-five days before the motion for new trial was acted on. On April 15th the court granted a thirty day extension of time for filing bills of exception. If notice of appeal was given on February 28th and fifty days granted from that time to file bills, the order extending the time was effective and the bills of exception were filed in time and should be considered.
Since the state's motion for rehearing was granted and an affirmance ordered — but while the appeal was still pendinghere — appellant filed a motion in the lower court showing that the entries on the judge's trial docket show that the order overruling the motion for new trial, the sentence and the notice of appeal were all made on February 28th, and that in fact such is the correct date of such orders, and that the clerk of the court in carrying the orders into the court minutes made a mistake in the date as to when sentence was pronounced and notice of appeal given, and requested the court to enter a judgment nunc pro tunc correcting said date, which the court undertook to do, and the said order as attempted to be corrected as to date, together with the proceeding incident thereto is before this court. Under the provision of article 828, C. C. P., the effort to correct the record pending appeal in this court was abortive, as said article restricts action of the lower court pending appeal to substituting lost or destroyed records. The attention of the Legislature has many times been called to the injustice which might result from the restrictive language of the article in question. See Turner v. State, 16 Texas App., 319; Quarles v. State, 37 Tex. Crim. 362,39 S.W. 668; Acuff v. State, 98 Tex. Crim. 71,262 S.W. 761. In Davis v. State, 28 S.W.2d 794, this court again said: "Of the injustice that may result, the present record furnishes an illustration, and occasion is taken for again calling it to the attention of the Legislature."
The same may be said of the present record. Other cases are cited in note 3, under article 828, Vernon's Ann. Tex. Cr. St., C. C. P., vol. 3. We think appellant gains nothing by reason of the nunc pro tunc order as the court had no power to make it.
The situation here found is very like that in Davis v. State, *Page 647 28 S.W.2d 794. We may look to the entire record to determine if appellant is not about to be deprived of the benefit of his bills of exception without any fault of himself or his attorney. The bills of exception were apparently — though not in fact — filed after the expiration of the time allowed by statute, and by force of article 828, C. C. P., preventing us from consideration of the nunc pro tunc order correcting the date, appellant will be deprived of a consideration of his bills unless it is shown to the satisfaction of this court that due diligence was used to secure their filing within the proper time, and that the apparent failure was without fault of appellant or his attorney. From the showing made in connection with his motion for rehearing and from the entire record we think appellant has brought himself within the rule in George v. State, 25 Texas App., 229, 8 S.W. 25, which rule was also invoked and given effect in Davis v. State, 28 S.W.2d 794.
Considering the bills of exception we are of opinion they present error harmful to accused as was pointed out in our original opinion delivered on June 14, 1933, reversing the judgment. So believing, appellant's motion for rehearing is granted, the judgment of affirmance is set aside and the judgment of the trial court is reversed and the cause remanded for the reasons appearing in the original judgment of reversal.
Reversed and remanded.