
    FOWLER v. STATE.
    (Court of Criminal Appeals of Texas.
    June 11, 1913.
    Rehearing Denied June 27, 1913.)
    1. Criminal Law (§§ 1092, 1099) — Appeal —Time for Filing Bill of Exceptions.
    Acts 32d Leg. c. 119, § 7, provides that on appeal from the district court the parties may have 30 days after adjournment to file a statement of facts and bills of exception, but if the term may by law continue more than eight weeks, the statement and bills of exception must be filed within 30 days after motion for a new trial shall have been overruled, and that while the trial court may extend the time, the time shall not be extended so as to delay the filing of the transcript in the appellate court. Rules 1 and 2, adopted by the Supreme Court for the Court of Criminal Appeals (142 S. W. xvii), requiring the filing of transcripts within 90 days, bills of exceptions and statement of facts in a criminal prosecution, tried at a term of court which began August 5th and adjourned November 2d, cannot be considered, where accused’s motion for new trial was overruled on August 26th, and the bills and statements were not filed until November 29th, 95 days after the overruling of the motion.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2S61, 2866-28S0, 2919; Dec. Dig. §§ 1092, 1099.]
    2. Criminal Law (§ 1144) —Appeal—Presumption.
    In the absence of a statement of facts and bills of exception, it must be presumed that the lower court correctly disposed of accused’s motion to quash the venire of jurymen drawn to compose the grand jury; evidence being heard on that issue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.]
    3. Criminal Law (§ 1090) — Appeal — Bill of Exceptions. ⅞
    In the absence of a bill of exceptions properly reserved, the overruling of accused’s motion for a continuance cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §.§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dee. Dig. § 1090.]
    4. Criminal Law (§ 1090) — Appeal—Bill of Exceptions.
    In the absence of a statement of facts and bills of exception, the denial of a motion for new trial, requested on the ground that the grand jury was not organized according to law, cannot be reviewed, it appearing that the lower court heard the evidence on that issue.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2S27, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    5. Jury (§ 70) — Summoning—Oath of Sheriff.
    It is not necessary for the court to swear the sheriff in ordering him to summon the special venire drawn as talesman; his oath of office being sufficient.
    [Ed. Note. — For other cases, see Jury, Cent Dig. §§ 310-330, 340, 350; Dee. Dig. § 70.]
    6. Criminal Law (§ 1090) — Appeal — Bill ' of Exceptions.
    In the . absence of a bill of exception, the admission of accused’s confession cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    7. Criminal Law (§,§ 518, 519*) — Evidence-Confessions.
    A confession should not be considered by the jury unless accused was warned, and the statement was freely and voluntarily made.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Di*. §] 1157-1162, 1103-1174; Dec. Dig. §§ 518, 519.]
    8. Criminal Law (§ 1144*) — Appeal—Bill of Exceptions.
    In the absence of a statement of facts, it must be presumed on appeal that the court correctly charged all the law applicable to the case, and it cannot be held that the refusal of special charges was error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2730-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.]
    Appeal from District Court, Tarrant County; R. H. Buck, Judge.
    Paul Fowler was convicted of murder, and he appeals.
    Affirmed.
    G. R. Lipscomb, of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
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   HARPER, J.

Appellant was prosecuted and convicted of murder in' the first degree, and his 'punishment assessed at death. The term of court at which appellant was tried convened August 5, 1912, and adjourned November 2, 1912. The motion for a new trial' was filed in the court below August 23, 1912, and overruled by the court on the 26th day of August, 1912. There are several bills of exception in the record, and a statement of facts, all filed on the 29th day of November, 1912 — 95 days after the date of the overruling of the motion for new trial. Section 7, chapter 119, Acts 32d Leg., provides that, when appeal is taken from the. judgment rendered in any cause in district court, the parties are entitled to and granted 30 days after the day of adjournment of court in which to prepare and file a statement of facts and bills of exception; provided that, if the term of said court may by law continue in session more than 8 weeks, said statement of facts and bills of exception shall be filed within 30 days after the motion for new trial shall have been overruled. It is further provided, for good cause shown, the court may extend the time; but the time shall not be extended so as to delay the filing of the transcript of the record in the appellate court within the time prescribed by law. Our Civil Statutes and the rules of the Supreme Court and the Code of Criminal Procedure provide for the filing of the transcript in the appellate court within not exceeding 90 days. Rule 2, adopted by the Supreme Court for the Courts of Civil Appeals (142 S. W. x); Rules 1 and 2 of the Supreme Court for the Court of Criminal Appeals (142 S. W. xvii). Article 5, § 25, Const. The judge in this case did not seek to grant more than 90 days, and if he had done so, his order would have been void. Inasmuch as the statement of facts and bills of exceptions were not filed within the time provided by law, the court continuing more than eight weeks, we are not authorized to consider them, and the motion for new trial presents no question we can review, in the absence of a statement of facts and bills of exceptions. Unless the statutes make provision for the filing of statement of facts and bills of exception after the adjournment, under the rules of law, those papers must be filed in term time. Our statute is liberal in this respect, but there is no authority in this court, or any other court, to grant more time after adjournment than is specifically allowed by the statute.

Appellant filed a motion to quash or challenge the venire of jurymen drawn to compose the grand jury. The court, in his order overruling the motion, states he heard the evidence adduced on the hearing of this challenge or motion, and the argument of counsel thereon, and, being fully advised as to ■ the law governing the issues, is of the opinion that defendant’s challenge should be overruled. As the evidence heard on said motion was not filed in term time, nor in the time allowed by law for filing statements of facts and bills of exception, we cannot consider same, and under such circumstances we must presume that the court ruled correctly in the premises.

Appellant filed a motion for a continuance. No bill of exception was reserved within the time allowed by law; consequently, under an unbroken line of decisions, we would not be authorized to review this question. However, we may add that had a bill been properly reserved, the application presents no ground for a continuance.

The court did not err in overruling the motion to quash the indictment. The indictment is couched in terms frequently approved by this court, and the grounds alleged are similar to those alleged in the challenge to array of grand jurymen, and, as said in that instance, the court heard the testimony adduced thereon; this evidence is not brought' before us in a way we cán consider it; therefore, we presume the court ruled correctly.

The grand jury was organized in the manner provided by our Code, and those provisions of the Code are not unconstitutional, as contended. Those were allegations contained in the motion for new trial which it took evidence to support; the court heard the evidence; we do not know what the testimony was; and under such circumstances we cannot review that ground in the motion for new trial which states the grand jury was not properly sworn, etc.

It was unnecessary for the court to swear the sheriff in ordering him to summon, the special venire drawn in accordance with law. The oath of office he took was sufficient. He was sworn to summon the talesmen as provided by our Code.

The confession of defendant was reduced to writing, and is in full compliance with our statute governing the admissibility of confessions. If there was any testimony which would tend to show that it should not have been admitted in evidence, the evidence should have been preserved by a bill of exception, prepared, approved, and filed within the time provided by law. The confession reads: “I, Paul Fowler, after having been duly warned by J. M. Brown, assistant county attorney, first, that I do not have to make any statement at all; and that if I do make a statement the same may be used in evidence against me on the trial for the offenses or offense concerning which this statement is herein made, and that this statement must be freely and voluntarily made, do make this free and voluntary statement to J.'M. Brown, assistant county attorney, the person by whom the above warning was given me. My name is Paul Fowler. I am 18 years of age. I live at 1114 Dallas alley, Ft. Worth, Tex. I ate supper at home with my grandmother about 6 o’clock, and left there and went up East Front street to Main street. This was. on Monday night before I was arrested on Tuesday evening. When I got to Main street I stopped at the Terminal Haberdasher, and looked in.the window at some pants, and I left there and walked to Fifteenth and Main streets, and looked in at the show window at L. Gordan’s and went from there on up Main street to Ninth street, and turned on Ninth, and went to Jones street, and up Jones street to Eighth street and east on Eighth street to Calhoun street, where I met a friend of mine by the name of ‘Rabbitt.’ We went in the saloon on the corner of Eighth and Calhoun streets, and I bought a half pint of whisky. I left ‘Rabbitt’ there,, and went on up to Brann’s saloon on Main street near the courthouse. I do not exactly remember the route. I took from the saloon on Eighth and Cal--houn to Brann’s saloon. At Brann’s saloon X met Ernest Harrison, Johnson Gilbert, Scotland Anderson, and a boy by the name of Douglas. We were in the back of the saloon, and while there we drank a can of beer. I do not remember how long we were there, but not very long; we left there, and all went to a pool hall back of the saloon on West Belk-nap and North Houston streets, except Johnson Gilbert, who left Brann’s saloon before we did. We were around that pool hall two or three hours, playing dominoes. After we finished playing dominoes I went back to the tóilet, and when I came back Ernest Harrison was gone. He was gone but a very short time when he came back and we left the pool hall. Scotland Anderson had left before we left, and the Douglas boy was still there when we left. Ernest Harrison and X went down Houston street to Weatherford street, down Weatherford to Main street, and down Main to East Eront street. We went down East Front to Kentucky, and down Kentucky to Dallas alley, and down the alley to my grandmother’s house. I went to the toilet in the back yard, and Ernest waited in the back yard while I was in the toilet. We retraced our steps back to East Front and ICentucky, and as we reached East Front street we saw a man going east on Front street, on the north side of the street, and Ernest was in front of me, and he got in front of the man while I was to the side of the man. Ernest was in front and stopped the man, and we threw our guns down on him. The man tried to say something, but could not, and then he hollered, and the guns fired. I do not know which fired first, but my gun went off, and there was only two shots fired; Ernest firing one and me the other. I have never seen the man before to my knowledge. While we were on the way to my house to the toilet, Ernest had said, ‘Suppose we should meet a live one; we would make some money, maybe’ — and when we went over to where this man was and threw our guns down on him; our intention was to get his money if he had any, and if he had given it up, there would have been no trouble. He never did put his hands up, but kept doing something with his coat that hfe was carrying on his arm at the time. After the shots were fired I ran home to my grandmother’s and when I got there Ernest was there. I knocked on the side of the house, and told my grandmother to let me in, and she got up and let us in at the back door. I do not know which way Ernest ran from the place where the shooting took place, but I ran up the sidewalk to the alley. When we got in the house, we laid our guns on the table. The next morning I found the black gun in the dresser drawer, and I took both of the guns and put one in one trunk and one in another trunk. Soon after we got in the house that night we went straight to bed, did not talk about the shooting, and I soon went to sleep. .We got up about 6 o’clock the.next morning and went away together, and I went' .to work at the Walker Grain Company, and I do not know where Ernest went after we left the house, for he left me. I have not seen Ernest since. The guns that we had Ernest had gotten them somewhere; I do not know where. The first time that I saw the guns was in the pool hall back of the saloon on the corner of North Houston and West Bel-knap, and that was before 6 o’clock on the afternoon before the night of the shooting. Ernest brought me a 41 Colts, a bright-looking gun and told me to put it on, and I stuck it under my shirt in the waistband of my pants. He had one on, but I did not see it at that time, but I felt it. We had the guns with us in the afternoon at Doc. White’s barber shop on East Front street. While I was in his shop I pulled off the one that I had, and put it in a drawer while I played dominoes. The guns that we had that night, and that we did the shooting with, are the same ones that I put in the trunks the next morning, and are the same ones that the officers have here to-night. This is all that I can remember about that matter at this time. [Signed] Paul Fowler. Witnesses: J. W. Renfro. J. A. Connelly.”

As stated before, the bill presenting this question was not filed in time to authorize us to review the action of the court in admitting it, but in the charge we find the court instructed the jury: “You are instructed that, unless you believe from the evidence beyond a reasonable doubt that the defendant, Paul Fowler, was warned by the Assistant County Attorney, J. M. Brown, in and for Tarrant county, Tex., before he made the purported confession claimed to have been made to and before the said Assistant County Attorney Brown, and introduced as evidence in this ease, and to the effect that he, the said Paul Fowler, did not have to make any statement at all, and that if he made a statement the same might be used in evidence against him on, the trial for the offenses or offense concerning which the statement is made, and that the statement was freely and voluntarily made to the Assistant County Attorney Brown, then you will not consider this Confession for any purpose, as evidence of defendant’s guilt.” So if by the testimony, which we have not before us in such condition we can consider it, it raised the issue that it was not freely and voluntarily made, the court in his charge properly submitted that issue.

In the absence of a statement of facts. we can consider, we must presume that the court charged the law, and all the law applicable to the testimony adduced on the trial,' and we are not authorized to determine whether or not the special charges should have been given. However, we will state that, as the jury assessed the death penalty we have read the statement of facts herein filed, and copied herein the confession of defendant,, although, .not properly before .us* even though not filed in the time permitted by law, and if we could consider this testimony, we would hold that the court did not err in refusing the special charges requested, and that it supports the verdict.

Judgment affirmed.  