Appellant was tried before a jury for unlawfully carrying a pistol, and on conviction his punishment was affixed at a fine of $100.
Appellant complains that the court refused to consider his motion for a new trial, which appears to have been filed three days after the conviction. Under article 839, C.C.P., the court is given discretion to hear a motion for new trial in felony cases after two days, but the requirement that they should be filed within two days appears to be mandatory in misdemeanor cases. Banks v. State, 79 Tex.Crim. Rep., 186 S.W. Rep., 840.
The record contains a statement of facts and bills of exception. The right to consider these in the absence of a motion for a new trial is challenged by the State. In Gant's case,73 Tex. Crim. 280, it is held that this court will not review matters which have not been presented to the trial court in a motion for a new trial. This ruling has been followed in several cases. Smith v. State, 189 S.W. Rep., 484; Vinson v. State,77 Tex. Crim. 546, 179 S.W. Rep., 574. This ruling is based upon a rule of the Supreme Court. The Constitution authorizes the Supreme Court to make rules governing that and other courts in the State. (Art. 5, sec. 25.) So far as our investigation has led us, the Supreme Court has under this provision made but three rules for the Court of Criminal Appeals. These were made in 1877 shortly after the Constitution was adopted and will be found in volume 2, Court of Appeals Reports, page 645. Neither of these rules prescribe any condition precedent to the review by this court of errors of the trial court. The Supreme Court has from time to time made rules for the District Court, some of which are stated therein for the purpose of directing the manner of preparing transcripts for appeal to this court. Some of these are discussed in Ratliff's case, 29 Texas Crim. App., 248, and in cases listed in Harris' Ann. Constitution, p. 489. None of these purport to affect the question on motion for new trial. Numerous rules have been made by the Supreme Court for that *Page 427 court and the Courts of Civil Appeals. 142 S.W. Rep., p. vii; 159 S.W. Rep., p.x. The rule on which the Gant case and those following it are based is one relating to assignments of error. Article 1612, Revised Civil Statutes of 1911, contains a provision with reference to assignments of error. It pertains to civil cases only. In fact, assignments of error have never been required in this court. Branch's Ann. P.C., p. 311, sec. 604, and cases cited. That statute was amended in 1913 so as to dispense with assignments of error in the civil courts where a motion for new trial was filed. In consequence of this statute, the Supreme Court added rule 101a to the rules for the District Court. This will be found at page x, 159 S.W. Rep.
We think it is a mistaken view to assume that this rule controls the authority of this court to pass upon questions disclosed in the record of appeals. The Supreme Court has not undertaken to make rules for this court for that purpose, and it is a mistake to hold that those made for other courts would have such effect. Even if the rule mentioned had been intended to apply to this court, and given the effect accorded it in Gant's case, it would have been, in our judgment, beyond the power of the Supreme Court. It has no power to makke rules inconsistent with legislative enactment. Johnson v. State, 49 Tex. Crim. 429. The procedure for appeals to the Court of Criminal Appeals is prescribed by statute. Article 914, C.C.P., provides that an appeal from conviction may be taken at any time during the term, and article 915 provides that this is accomplished by giving notice of appeal and having it entered of record. There is no statute requiring a motion for a new trial to be filed. Title 9, chapter 1, Vernon's Ann. C.C.P., gives the convicted defendant the privilege of filing one, requires the court to grant it under certain circumstances, declares when it shall be filed; and article 840 gives its requisites as follows: "All motions for new trials shall be in writing and shall set forth distinctly the grounds for which the new trial is asked"; and article 844 of the same chapter provides: "Where the defendant has failed to move for a new trial, he is nevertheless entitled, if he appeals, to have a statement of facts certified and sent up with the record." Article 744 requires the trial court to sign a bill of exceptions on request showing his ruling, "in order that such decision, opinion, order or charge may be revised upon appeal." Prior to the passage of the Act of 1913 (art. 743, C.C.P.), requiring an exception to the charge before it is read to the jury, exceptions were reserved to the charge in the motion for a new trial. The motion for a new trial was the first opportunity the trial court was given under the law to know the objections that a defendant had to suggest. Since that enactment, exceptions to the charge and the refusal of special charges are reserved by bills of exception, the court having been given an opportunity to pass upon the questions before the charge was given. These statutes, article 744, relative to bills of exceptions, and article 844, with reference to statements of facts, and the decisions of this court, and the statute providing the requisites of bills of exceptions and statements of facts, constitute the *Page 428 statutory means of bringing before this court questions for review, except in those cases where some matter arises which neither a bill of exceptions nor a statement of facts would bring into the record. In such cases the motion for a new trial and the ruling of the court thereon and the evidence heard in connection therewith serve the purpose of making such matters a part of the record, and it is only with reference to such matters, in our judgment, under our statute that a motion for a new trial becomes necessary to authorize a review of the proceedings, and it is necessary only with reference to such proceedings as are not otherwise a part of the record.
Such we understand to be the view of the Supreme Court. Railway Co. v. Beasley, 106 Tex. 160, wherein the rule referred to in the Gant case, supra, was discussed in connection with article 2062, Revised Civil Statutes; and to the same effect is the decision of the Supreme Court in Western Union v. Mitchell,89 Tex. 441, from which we copy the third subdivision of the syllabus, as follows:
"When the trial court overrules or sustains exceptions to the petition, admits or rejects evidence, or gives, refuses, or qualifies instructions, and such action becomes matter of record, being the action of the court itself, it is subject to revision. The aggrieved party is not bound to ask a revision of such ruling in a motion for new trial."
Our conclusion from the foregoing authority is that where an appeal is prosecuted, this court is required by the law to consider questions raised by bills of exception properly prepared and made a part of the record, and a statement of facts prepared and filed in compliance with the statute, and that it is not absolved from this duty by the failure of the defendant below to file a motion for a new trial.
Acting on this conclusion we proceed to consider the questions thus raised in this case.
It appears that appellant while at work in an oil mill received information that he was in danger of attack from certain parties; that on his way home from work he purchased a pistol and carried it to his home, and after he reached home, before he had taken the pistol off of his person, some people came to his residence after night and attracted his attention, and he walked out to ascertain who they were and what was wanted, and that while doing so he was arrested with the pistol in his possession. There was a sharp issue of fact as to whether he stepped off of his premises or not, it being claimed by the State that he did walk a few feet off of his premises, and this the defendant denied. The officer who arrested him said that the appellant's house was from five to eight feet back from the street; that there were parties in front of his house and that the officer called these parties and that the appellant walked off of his porch and came off of his yard and was arrested. We quote from the officer as follows: "About that time the said two negroes in front of the house drove off in the buggy from where they were stopping, and then the defendant came around his house from his back porch, and came walking along towards where I was when I had called to Burton and Rice, and when *Page 429 defendant had come off his yard towards me I spoke to him and he started back and I grabbed him, and Mr. Keith also stepped up and took hold of him and we searched him right there and took a pistol off his person. Defendant's house is east of that street about five to eight feet, and when I caught defendant and arrested him there with Mr. Keith he was not inside of his yard but had advanced from off his yard towards me until he had gotten off his yard into the street. He was in the street when I arrested him, for I never did leave the street myself and he was in the street when I grabbed him. He had started back a little when I caught him toward the house but was outside his yard." The appellant and several witnesses testified that he did not go outside of his yard. The owner of the premises which appellant was occupying as a tenant testified that the ground in front of appellant's house where the travel passed it was not in the street but on the premises occupied by appellant. He said: "There is a break, or ravine, at the west side of that street right opposite to his house, which so obstructs or impairs the street there as to cause the travel along there right opposite his house to slightly encroach upon the defendant's yard; that is, what appears to be the east side of the street is on a part of defendant's yard for perhaps just a few feet."
It is doubtful in view of this testimony whether the proof showed that appellant was off his premises with the pistol, and even if he was it is not clear that his act in stepping out of his yard under the circumstances, with the pistol on his person, would show an offense. The court on this subject charged the jury as follows: "If you believe from the evidence beyond a reasonable doubt that the defendant had on his person a pistol as charged but that he was on his own premises and not in the street, then the defendant would be guilty of no offense under our laws." This charge was excepted to and is not accurate, because it puts the burden of proof on appellant to prove his defense. The appellant also requested a charge submitting this issue in a more accurate and in an affirmative manner, and in our judgment the bill of exceptions to the paragraph of the court's charge mentioned in connection with the refusal of this special charge presents error. Branch's Ann. P.C., p. 560, sec. 975.
And, because of this error, it is ordered that the judgment of the lower court be reversed and the cause remanded.
Reversed and remanded.