Wilson v. State

In his motion for rehearing, appellant urges that this Court was in error in holding that we could not consider certain bills of exception, upon which the trial court had noted in varying language, that no such objections were made, or no such bills of exception were taken, or that such proceedings were not shown in the record. It is again insisted that under the case of Rosa v. State, 86 Tex.Crim. Rep., 218 S.W. Rep., 1056, we should have considered said bills.

We have again reviewed said decision, and this matter, in view of the able and insistent argument of appellant, and are unable to come to a conclusion variant from that expressed in our opinion herein. Differences between trial courts and attorneys as to what proceedings were had, are possibly unavoidable, but our practice gives to one accused, and who uses diligence, every opportunity to have the record correct. He may take his bill promptly to every action of the trial court, and have it then and there so definitely settled as to obviate any probability of any misunderstanding. Official stenographers are now used in all felony trials in this State, and there is very little opportunity for misunderstanding. If an accused has not *Page 632 seen fit to avail himself of the official stenographic record, which ought to show exactly what his object and exception was, he should at least present to the trial court a bill so embodying the substance of the matter as that in fairness, and in compliance with the direction of our statute, the trial judge may be able to compare the same with the stenographic account of what transpired, and may decline to approve such bill, and file in lieu thereof a correct one; but when the trial court certifies that no such bills were taken, or that no such objections were heard, or that no such proceedings were had, then this Court necessarily reposes confidence in the official certificate of the judiciary, and until, in some legal way, it is made to appear that the same is not correct, this Court has uniformly declined to accept the affidavit of the appellant, or his counsel, as a sufficient attack upon the truth and correctness of such certificate. We again state that this character of certificate by a trial judge is altogether different from a simple endorsement upon a bill that the same is refused, without explanation or qualification.

In Clark's case, 67 Tex.Crim. Rep., 148 S.W. Rep., 801, we refused to consider a bill of exceptions which was refused by the trial court with the statement that no such ruling was made. When the court refuses bills and no effort is made to authenticate them as required by statute, this court will not consider them. York v. State, 57 Tex.Crim. Rep.; Galan v. State, 68 Tex.Crim. Rep., 150 S.W. Rep., 1171; McHenry v. State, 76 Tex.Crim. Rep., 173 S.W. Rep., 1020. Where the court refuses to approve a bill, with the statement that he did not remember such transaction, this court will accept that statement. Howard v. State, 65 Tex.Crim. Rep., 143 S.W. Rep., 178.

The motion for rehearing will be overruled.

Overruled.