Gherke v. State

McCORD, Judge. Appellant was tried and convicted in ‘the court below of the offense of forgery and his punishment assessed at two years confinement in the penitentiary. *509 The transcript of the record was filed in this court on February 25, 1910. On the 5th day of April, 1910, appellant filed a motion for writ of certiorari in this court complaining that the record was incomplete in that through mistake and inadvertence of both the State and defendant, as well as mistake and inadvertence of the official stenographer who prepared the statement of facts, the forged check was not set out in the statement of facts, and prayed for the writ. This writ was granted. In answer to said writ the clerk has sent to this court a check purporting to have been executed by Arthur A. Smith, and payable to Charles F. Gherke for $19, and drawn on the First National Bank of El Paso, Texas. No certificate of the clerk accompanies the check. Nothing showing that this was the check that was introduced in evidence upon the trial of the case. However, the view that we take of this case is that appellant can not, after the record is made up and after the statement of facts have been approved, have the statement of facts amended. An Act of the Thirty-first Legislature provides that a defendant appealing in a criminal case shall have thirty days after the adjournment of court in which to file and prepare a statement of facts. On an inspection of the statement of facts in this case which was approved and filed in the court below on the 26th day of January, 1910, this statement is found: “State offers the check in evidence.” After the statement of facts has been approved and the record made up we know of no rule of practice that will authorize parties to the case to add anything to the statement of facts. Here the appellant complains that the check was introduced in evidence but he omitted to have it copied in the statement of facts and he now asks that this omission be supplied by allowing the statement of facts to be amended só that said check may be incorporated. This can not be done. If the rule insisted upon in this case should obtain and this court would hold that this omission could be supplied, we would find ourselves confronted with the proposition that statements of facts could be amended after the record reached this court. Suppose A has appealed from a conviction; B is an important witness in the trial of the case, and in making up the statement of facts B’s testimony is omitted entirely from the statement of facts. Would A, after the statement of facts had been approved and the record filed in this court, be permitted to have the statement of facts corrected and the testimony of B incorporated therein? We answer no. Appellant made a motion in the court below both for new trial and in arrest of judgment on the ground that there was a variance between the check set out in the bill of indictment and that offered in evidence. There is nothing in the record that would advise us as to whether this contention is correct or not. The statement of facts shows that the check was introduced in evidence, and we must assume that the check as described in bill of indictment was the one introduced in evidence. It was not set out in the statement of facts and the same *510 can not be supplied after the record has been made up and filed in this court. This is the only point in the contention of appellant in this case, and finding no error in the record and nothing in the Code of Criminal Procedure that would authorize the amendment of the statement of facts after it is filed in this court, the motion to correct will be denied and the judgment affirmed. Affirmed. ON rehearing. June 1, 1910.