The opinion
ON SECOND MOTION FOR REHEARING.
MORROW, Presiding Judge.
— Upon the original hearing and on rehearing there appeared in the record before this court no order of the trial court extending the time within which there might be filed a statement of facts and bills of exception, nor was there any claim then made that the court below had signed any written order which was lost. It is now made to appear that at the time of overruling the motion for new trial on the 2nd day of August, 1929, the trial judge prepared and signed a written order overruling the motion, noting thereon the following:
“* * * to which action of the Court the defendant then and there in open court excepted and gave notice of appeal to the Court of Criminal Appeals of the State of Texas, at Austin, Texas, and asked for eighty days from and after the adjournment of this court in which to prepare and file his bills of exceptions and statement of facts, which request is hereby granted and this notice and order is ordered to be placed of record.
“(Signed) E. J. Miller,
“Judge Presiding.”
It is also now shown that the order so written was delivered to the district clerk for entry on the minutes. The clerk, however, failed to enter the order upon the minutes. Discovering the omission, the appellant sought an entry of the order, nunc pro tunc, and presented in the trial court a motion, notice of which was given to the district attorney, and upon the hearing thereof the minutes were corrected to show the true facts, namely, that at the time the motion for new trial was overruled the appellant was granted eighty days after the adjournment of court within which to prepare and file the statement of facts and bills of exception. It further appears that the original written order prepared by the court has been lost, but that the substance of it was written upon the judge’s docket. The latter are simply matters of evidence.
The conclusion stated by this court that the nunc pro tunc order cannot be considered for the reason that the trial court had no authority to enter it after the appeal to this court is supported by the precedents which are cited in the opinion on motion for rehearing.
Commenting on article 884, C. C. P., now article
828
(1925), this court, in the case of Quarles v. State, 37 Texas Crim. Rep., 362 , 39 S. W., 668, 669 , said: “It would seem from a proper construction of this statute that, pending appeal to this court, the trial court from which said appeal is taken can take no steps with reference to the case until this court has finally disposed of said appeal, except where some portion of that record has been lost or destroyed, after notice of appeal has been given.”
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In Turner v. State, 16 Texas App., 318, the attention of the Legislature was called to the fact that under the statute as it then read the trial court could not even substitute lost or destroyed portions of the record after notice of appeal had been given, and it was suggested that the law be so changed as that the records might be amended to conform to the facts as well as to substitute lost papers. The Legislature responded to the suggestion only to the extent of permitting the substitution of lost or destroyed records. See Quarles v. State, 37 Texas Crim. Rep., 362 , 39 S. W., 668 . That condition remains unnchanged. See article 828, C. C. P. (1925).
Of the injustice that may result the present record furnishes an illustration, and occasion is taken for again calling it to the attention of the Legislature. It is now made apparent that without fault on the part of the accused or his counsel the bills of exception were filed after the expiration of the time allowed by statute and that by .force of article 828, supra, as heretofore construed, he will be deprived of a hearing on appeal unless he be afforded relief under the rule announcd by this court in the case of George v. State, 25 Texas App., 229, 8 S. W., 25 , namely, that when not filed within the time allowed by the law the bills may be considered where it is shown to the satisfaction of this court that due diligence was used to secure their filing within the proper time and that the failure was without fault on the part of the accused or his attorney. From the showing made in connection with his second motion for rehearing we think appellant has brought the case within the rule in George v. State, and that under the rule his bills should be considered, but that he has no right under the order nunc pro tunc as the court had no power to make that order.
Upon the acceptance of nine jurors the panel was exhausted, and talesmen were required. With the consent of the appellant and his counsel, the selected jurors were permitted to separate without the presence of an officer. They were instructed by the court, however, to refrain from discussing the case or permitting its discussion in their presence. The controlling statute is article 668, C. C. P., which reads as follows: “After the jury had been sworn and impaneled to try any felony case, they shall not be permitted to separate until they have returned a verdict, unless by permission of the court, with the consent of the attorney representing the state and the defendant, and in charge of an officer.”
This statute has been construed as having no application in a felony case less than capital where the jury has not been impaneled and sworr. to try the case. See Rhea v. State, 101 Texas Crim. Rep., 298 , 275 S. W., 1021 ; Coffey v. State, 82 Texas Crim. Rep., 57 , 198 S. W., 326 ; Jones v. State, 69 Texas Crim. Rep., 447 , 153 S. W., 897 . This refers to Bill No. 2.
The inquiry of the state’s witness J. B. Casey touching the number
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of times he had been married is not shown by the bill to have been relevant or material. The appellant seems to have desired to make the inquiry as bearing upon the character of Casey. The bill is silent touching the expected answer or the nature of Casey’s testimony. The refer< ence is to Bill No. 3.
The same principle applies to Bill No. 4 in which the appellant’s inquiry as to whether Casey was a “stool pigeon” was interrupted by the court. The relevancy or materiality of Casey’s testimony is not made manifest by the bill. Of the same nature is Bill No. 5 touching the cross-examination of Casey with reference to whether he had at some time in Eastland county, conducted a gambling house.
In Bill No. 6 it appears that the witness Casey, testifying for the state, said that he went to the home of S. B. Davis and there waited until the appellant came and delivered a pint of whisky for which he was paid by the witness. In response to a question by state’s counsel he made the additional statement: “I stayed there long enough to drink a bottle of beer.” The answer was withdrawn by the court. In the same connection Casey testified that there was a farmer drinking a bottle of beer. This seems to have taken place at the home of the appellant’s brother and at the time and place that the appellant delivered Casey the pint of whisky. The propriety of the consideration of the bill last mentioned is questionable for the reason that it is in substance in question and answer form. However, error is not deemed to have been shown; certainly none that would authorize the reversal of the case.
Bill No. 8 seems to relate to the same transaction as that of which complaint is made in Bill No. 7. The court seems to have made an effort to qualify it by explaining a number of these bills but his name is not signed to the qualifying statement and it is not considered as a part of the bill.
Bill No. 9 reflects an effort to elicit testimony from a witness who had testified to the good reputation of J. B. Casey; that Casey had at one time run a gambling house in Eastland county, and was known in that neighborhood as a gambler. The inquiry would probably have been a proper one if it did not relate to a time too remote. The date does not appear in the bill but no reversal can be based upon it for the reason that the bill fails to show what testimony was given by Casey, either in substance or in detail.
In Bill No. 10 the charge of the court is criticized because it embraced the following statement: “You will not consider for any purpose the evidence introduced as to the reputation of the defendant for truth and veracity.”
It is stated in the bill that it was confusing and unnecessarily limited and qualified the rights of the accused, especially in view of the fact that some of the witnesses who gave testimony to his good reputation for
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truth and veracity testified to his good reputation as a law-abiding citizen. The court attempted to qualify the bill by stating that the testimony was admitted upon the assurance of the appellant’s attorney that the appellant would testify in his own behalf, but that in fact he did not do so. The unsigned qualification cannot be considered. The bill not showing that the appellant testified, would intimate that he did not, and the statement of facts shows that he was not a witness.
Upon the record before us, we are constrained to overrule the second motion for rehearing.
Overruled.