
    PARHAM v. STATE.
    (No. 5782.)
    (Court of Criminal Appeals of Texas.
    May 5, 1920.
    On Motion for Rehearing, June 2, 1920.)
    1. Criminal law @=>1054(1) — Court’s failure to limit testimony not available on appeal when not excepted to.
    Court’s failure to limit testimony is not available on appeal, where no exception was taken to court’s failure to so do, even though defendant was unlearned in the law, was not represented by an attorney, and did not know how to take advantage of the situation by excepting.
    2. Criminal law @=31168(2) — Failure to limit testimony held not reversible error.
    In prosecution for automobile theft, where police officers who had arrested defendant for theft of tool joints testified, court’s failure to limit-such testimony with reference to the extraneous crime was not reversible error, where defendant pleaded guilty and where the facts showed beyond question that defendant stole the automobile.
    On Motion for Rehearing.
    3. Criminal law @=>649(3) — Refusal to postpone trial for absence of defendant’s counsel held error.
    Where defendant’s attorney resided • in a county other than that in which the case was called for trial, and was engaged in the trial of cases in such- other county at the time that the case was called for trial, court’s refusal to postpone trial because of tbe absence of defendant’s attorney, where such postponement would not have operated as a continuance, and where such failure left defendant without any attorney, held reversible error.
    4. Criminal law <©=>641 (I) — Accused entitled to benefit of counsel.
    Accused’s right, under the Constitution, to have the benefit of counsel, is a valuable right which the courts will strictly enforce.
    5. Criminal law <@=>1092(11) — Bills of exception approved subsequent to making of transcript will be considered where transcript was made out before expiration of time for the approval of bills.
    Where the transcript was made out and certified by the clerk before the expiration of the period for filing bills of exception, bills of exception approved by the judge subsequent to the making out of the transcript but within the time provided for the filing and the approval of the bills will be considered.
    6. Criminal law <@=>l 104(6) — Transcript not to be made out until expiration of time for filing bills of exception.
    Where time for filing of bills of exception is extended, the transcript should not be made out until after the expiration of the extended period.
    7. Criminal law <@=>518(2) — Defendant’s statements to officers while under arrest without being warned inadmissible.
    Testimony of statements by defendant to police officers, amounting to a confession, made while he was under arrest without being warned and without being reduced to writing, held inadmissible.
    8. Criminal law <@=»528 — Statements to officers by defendant’s associates while under arrest held inadmissible.
    In prosecution for theft, testimony as to statements, amounting to confessions, made to police officers by two of defendant’s associates, separately made while in separate rooms in the jail, held not admissible.
    9. Criminal law <@=>673(5) — Testimony as to extraneous crime should be limited.
    In prosecution for automobile theft, where there was testimony by police officers who had arrested defendant for theft of tool joints, after having driven to scene of crime in the stolen automobile, the testimony of such officers should be appropriately limited in the charge of the court.
    Appeal from District Court, Wichita County ; P. A. Martin, Special Judge.
    Elmer Parham was convicted of theft, and he appeals.
    Reversed and remanded.
    Jno. T. Spann, of Dallas, for appellant.
    Alvin M. Owsley, Asst. -Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was charged with and convicted of theft of an automobile. When the case was called for trial appellant presented an application for a continuance, which being overruled he entered a plea of guilty and was awarded by the jury the minimum punishment of two years. The application is not signed by the defendant. There is, however, at the end of the application a statement of the clerk to the effect that it was subscribed and sworn to by the defendant on the'-day of November, 1919, and the clerk placed hi.s seal on it on the-day of December, 1919.' The days are left blank. The application is based on the absence of counsel, who, he alleges, resided in Dallas, Tex. Our Constitution provides that an accused may be heard by himself or counsel or both, and thiS right should be accorded him in a proper manner and under appropriate circumstances. The statement as shown in connection with the application is that his counsel was engaged in cases set in court in Dallas county, that they came up about the same time that this case was .tried, and that counsel was detained by reason of those cases in Dallas. Under the decisions of this court we are of opinion this is not a sufficient showing. There was no attempt made by appellant to reset his case in order to give his attorney an opportunity to be present. He only sought to continue it for the term. This question has been decided adversely to appellant in Mason v. State, 74 Tex. Cr. R. 256, 168 S. W. 115, Ann. Cas. 1917D, 1094, and to the same effect is Davis v. State, 69 Tex. Cr. R. 86, 154 S. W. 226, and Usher v. State, 47 Tex. Cr. R. 95, 81 S. W. 309. The Mason Case is in point. Doubtless had the court been requested to reset this case it would have been granted; at least, there is no attempt on the part of ap: pellant to have the case reset in order that his attorney might be present.

There are two papers in the record purporting to be bills of exception, but neither are signed nor approved by the judge. There is a fourth bill which was reserved to the action of the court with reference to the testimony of two state’s witnesses, in that the court failed to limit and restrict the force and effect of their testimony. The. substance of their testimony was that appellant and two others came driving to the depot and alighted at the platform and began taking “tool joints.” When the boys began to take these tool joints the witness Somerville, who was guard or policeman at the station, arrested them. He was not aware at that time that the auto they were driving was the one with which he was later charged with stealing. The evidence shows that the auto they were driving had been stolen, only a few minutes before and for the purpose of going to the depot to get these “tool joints.” The object in securing the joints was to get money to pay board. The testimony of the other witness, who was also an officer, was with reference to statements the boys made to him in regard to these matters. These statements in a general way may he stated to he admissions and confessions with reference hoth to. the taking of the car and the taking of the tool joints. The court did not limit this testimony to any purpose, and after the trial appellant filed an exception to the failure of the court to so instruct the jury.

As the matter is presented it cannot be considered. There was no exception taken to the charge at the time, though the bill recites that the charge was given appellant for inspection. The reason given why an exception was not then reserved was that appellant was unlearned in the law and did not know how to take advantage of the situation by excepting. This would hardly furnish a reason legally; but, in any event, under the circumtances of this case it would not present any serious question we think. Appellant pleaded guilty. The state introduced evidence in accordance with the statute which, requires it to be done where pleas of guilty are entered. The facts show beyond any question or debate that appellant committed the theft of the auto, and that he drove to the depot a short distance away, after taking the auto, to get the tool joints and was arrested. The minimum punishment was assessed under a plea of guilty.

Finding no reversible error in the record, the judgment will be affirmed.

On Motion for Rehearing.

On a former day of the term the judgment herein was affirmed. One question in the case was decided on the theory that the application for a postponement, as now claimed, was only an application for a continuance for the term. In the light of the motion for rehearing and a more careful consideration of the record, we are of opinion that we were mistaken with reference to the full import of the application. While it is denominated an application for continuance, and evidently so treated by the trial' court, yet there is a request made of the court, if the continuance should be refused, that his absent counsel’s presence could be secured the following week. So this application may be considered as one in the alternative for a continuance or postponement on account of the absence of counsel. The showing made by the application is sufficient so far as the absence of counsel was concerned. He resided in Dallas county, and was engaged in the trial of cases in that county at the time that this case was called for trial, and those cases were set at the same term in Dallas county that this case was called for trial in Wichita county. This was appellant’s only counsel and upon whom he relied. This case was tried on the 4th of December, 1919. The court did not adjourn until the 28th of the following February. A postponement of the case for the presence of counsel would not have operated as a continuance. The accused was not defended by any attorney during the trial. After his application was overruled he entered a plea of guilty. The suggestion is that this would not have occurred had his counsel been present and aided in the defense. The Constitution provides that the accused shall have the benefit of counsel if he desires. This is a valuable right and one that has been rather strictly enforced by the courts. We are of opinion, therefore, that we were in error in affirming the judgment from thig viewpoint; that appellant was entitled to a postponement that his counsel might be present and represent him.

It was noticed in the former opinion that there were two bills of exception in the record which were not approved by the judge. It is made to appear by certificate of the clerk accompanying this motion for rehearing that both bills were approved by the judge subsequent to the making out of the transcript, and the record of the office of the district clerk so shows. As presented, we are of opinion the bills should be considered. It is shown by the record that the court adjourned on the 28th of February. Two orders of ex-, tension of time, amounting to SO days, weré granted by the trial judge in which to prepare bills of exception. This extension would have expired about the 28th of March. The transcript was made out and certified by the clerk of the trial court on the 11th of March, and the file mark here shows it to have been filed in this court on the 13th of March, 15 days prior to the expiration of the time allowed by the trial judge for the approving and filing of the bills. The clerk certifies that after he made out the transcript and forwarded it to this court the trial judge approved the two bills in question. Under the order of the trial judge the appellant had to the 28th of March in which to have approved and. filed his bills of exception. The transcript should not have been made out until after the expiration of the 30 days. These bills of exception show important matters for the appellant, and wei think show erroneous rulings of the trial court. These bills show that the parties were arrested, three in number, connected with the alleged theft, and that they made statements amounting to'confessions to the officers, and among others was the confession made by appellant. He was unwarned, under arrest, and' the confession was not in writing. It also shows the confessions of two of appellant’s associates separately made when they were in separate rooms in the jail from each other. Their testimony was not admissible.

There is another matter that might be mentioned which was discussed in the- original opinion. It is this: The court did not limit the testimony with reference to an extraneous crime. Appellant was charged with the theft of ah auto. During the same evening or night appellant and his associates were arrested for the theft of some “joints.” This testimony was introduced and the court failed to limit it. There was an exception taken to the charge in the trial court before it was read to the jury. Upon another trial we are of opinion this testimony should be appropriately limited in the charge of the court. It had an important hearing upon the case. The contention is made that in taking the car the parties did not intend to appropriate it but only to use it for the purpose of conveying the joints when taken, and appellant undertook to segregate himself even from the taking of the car. These matters rather emphasize the first proposition, that is, that appellant ought to have had an opportunity for his counsel to be present and assist in the trial of the case.

Eor the reasons indicated the motion for rehearing is granted, the affirmance is set aside, and the judgment now reversed and the cause remanded. 
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