The motion for rehearing is based upon the court's refusal to grant a new trial upon the ground of alleged newly discovered evidence. Appellant insists that although the statement of facts heard on the motion for new trial was not filed during the term, the circumstances are such as demand its consideration. The verdict was rendered on the 16th of March, the term of court closed on the 1st of April. The motion for new trial was filed on the 18th of March and an amended motion on the 23rd of that month. Attached to the amended motion was the affidavit of Sadie Williams, relied on in the main as supporting the ground of the motion mentioned. State's counsel filed a controverting *Page 389 affidavit on the 25th of March and on the 27th of that month, the motion was overruled.
Counsel points to an order of the trial judge made in connection with the statement of facts on motion for new trial which was filed on the 16th of June, in which he recites that the stenographer was busily engaged in taking testimony in a capital case which rendered it impossible for her to prepare the statement of facts during the term, and that it was therefore ordered that the statement of facs be prepared after the term of court and filed nunc pro tunc.
The statute authorizes the trial judge to extend the time within which a statement of the facts heard on the trial of the case may be filed. Art. 845, C.C.P. No authority within our knowledge is given to direct the filing of a statement of the evidence heard on the motion for new trial after the time expires. The law requires such statement to be filed before the term expires, and one filed later cannot be considered. The statutes have been so construed on many occasions. Vernon's Crim. Stat., Vol. 2, p. 833, note 5. See also Thompson v. State, 83 Texas Crim. 18; Mason v. State, 83 Tex.Crim. Rep.; McKinney v. State, 85 Tex.Crim. Rep.; Hart v. State, 86 Tex. Crim. 653; Gray v. State, 88 Tex.Crim. Rep.; Holloway v. State, 88 Tex.Crim. Rep.; Salazar v. State, 88 Tex. Crim. 209 225 S.W. Rep., 528. Permission to file such a statement of facts after adjournment of the term is not within the legal perview of an order nunc pro tunc.
"A nunc pro tunc entry is an entry made now, of something which was actually previously done, to have effect as of the former date. Its office is not to supply omitted action by the court, but to supply an omission in the record of action really had, but omitted through inadventence or mistake." (Bouvier's Law Dist., Vol. 2, p. 528.)
To the same effect are numerous cases cited in Words Phrases, 2nd Ed., Vol. 3, p. 663. The law permitting the statement of facts or the data therefor to be prepared by the court stenographer is not exclusive of that method. Article 845 of the Code of Crim. Procedure contains an express provision to the effect that such statement may be prepared independent of the transcript of the notes of the official shorthand reporter. See Arts. 844a and 844b, C.C.P.
There were but few witnesses heard on the motion for new trial, and no sufficient reason is given for the failure to prepare a statement of facts within the three or four days of the term remaining after the motion was heard, or to request the court to extend the term to enable the stenographer to prepare the statement. The statement of facts finally prepared was filed about seventy days after the close of the term at which the case was tried, and as then prepared, it does not conform to the requirements of the law in that it is wholly in question and answer form. Both statutory direction and judicial interpretation are opposed to a statement of facts so prepared. *Page 390
"A statement of facts . . . shall consist of the evidence adduced upon the trial, . . . stated in succinct manner and without unnecessary repetition." (Vernon's Sayles' Tex. Civ. Stat., Art. 2070.
A transcription of the stenographer's notes in question and answer form is not in compliance with this statute and cannot be considered. Choate v. State, 59 Tex.Crim. Rep.; Hart v. State, 150 S.W. Rep. 188. In Art. 846 of the Code of Crim. Pros., it is said:
". . . provided, that such stenographer's report when carried into the statement of facts or bills of exception, shall be condensed so as not to contain the questions and answers, except where, in the opinion of the judge, such questions and answers may be necessary in order to elucidate the fact or question involved."
From what has been said, it is manifest that this court is not authorized to consider the statement of facts in question.
We will add, however, that even if it were before us, the views expressed in the original opinion touching our inability to find a basis for overturning the ruling of the trial judge in overruling the motion for new trial because of the newly discovered evidence would, in our judgment, determine the matter against the appellant.
The motion is overruled.
Overruled.
ON APPELLANT'S APPLICATION TO FILE SECOND MOTION FOR REHEARING. October 17, 1923.