Flanagan v. State

*183ON REQUEST FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.

HAWKINS, Presiding Judge.

Appellant has presented a request for leave to file a second motion for rehearing in which he calls attention to an order of the trial judge contained in a ■ supplemental transcript, which order appellant contends authorizes this court to consider his bill of exception number nineteen.

Before the opinion overruling the motion for rehearing was delivered on May 28, 1941, another opinion had been prepared in which said bill was again considered, the evidence of the jurors reviewed, and the same conclusion reached as announced in our original opinion, but before said opinion was released the defect in said bill of exception number nineteen was discovered, which resulted in the opinion on rehearing delivered on May 28th, which omitted mention of the order in the supplemental transcript. For that reason appellant’s second motion for rehearing will be considered.

The term of court at which appellant was tried adjourned on November 2, 1940. The original transcript was filed in this court on the 22d day of January, 1941. Said transcript contains bill of exception number nineteen, which was approved on December 14, 1940. On the 19th day of February, 1941, there was filed in this court a supplemental transcript containing the following order: “I, Paul G. Brown, Judge Presiding in the above styled and numbered cause, do herbey certify that it is necessary to allow the defendant’s Bill of Exception No. 19 to be reduced to question and answer form, coupled with the objection of the defendant and ruling of the court, in order for the Bill of Exception to reflect what actually transpired. And I do hereby further certify that I inadvertently failed to sign the certificate on the defendant’s Bill of Exception No. 19, so certifying as to the necessity of allowing the said Bill of Exception to be reduced to question and answer form, at the time said Bill of Exception was approved by the court and ordered filed as a part of the record in this cause. I hereby now, this 17th day of February, 1941, enter this order Nunc Pro Tunc as of the 14th day of December, 1940.”

Efforts have been made often, sometimes by the State and sometimes by appellants, to amend statements of fact and *184bills of exception after appeal has been perfected and the record filed in this court, and it has been the consistent holding of the court that in the absence of fraud, no such amendment would be permitted. The same rule with reference to attempted amendments applies to both statement of facts and bills of exception. See Johnson v. State, 147 S. W. (2d) 811. The rule is very clearly stated in Sec. 332, p. 476, Tex. Jur., Vol. 4, as follows: “Neither the trial court nor anyone else may add to, amend or change a statement of facts or bill of exceptions after the time for filing it has expired, or after the appeal has been perfected and the record has reached the appellate court; a supplemental statement made after the time for filing a statement has, expired will not be considered.” Cited in support of the text are Sullenger v. State, 79 Tex. Cr. R. 98, 182 S. W. 1140; and Gerard v. State, 10 Tex. Cr. App. 690. See also McBride v. State, 93 Tex. Cr. R. 257, 246 S. W. 394, which cites earlier cases; Davidson v. State, 109 Tex. Cr. R. 251, 4 S. W. (2d) 74, with authorities there referred to in the opinion on rehearing. See also Rountree v. State, 128 Tex. Cr. R. 28, 78 S. W. 629; Johnson v. State, 147 S. W. (2d) 811.

In whatever form it comes it is quite evident that the order of the court made on February 17, 1941, and brought forward in the supplemental transcript is an effort to' amend bill of exception number nineteen, after the record reached this court, and after the trial term of court had adjourned. Under all the authorities mentioned and referred to this could not be done. We observe a statement in the order of date February 17, 1941, to the effect that the trial judge had inadvertently failed to sign the certificate on the defendant’s bill of exception number nineteen that it was, necessary for the bill to be in question and answer form. We have again examined said bill as it appears in the original transcript and find no such certificate as that mentioned.

We see no reason why a statement of facts of the evidence heard on a motion for new trial should not be preserved in narrative form any more than the evidence heard on the main trial. There might be some particular question and answer that it would be necessary to set out in that form, but for the entire evidence to be so drawn out appears uncalled for.

Having considered the matter relied on in appellant’s request to file second motion for rehearing, said motion is overruled for the reasons stated.