The opinion
The appellant has made two motions in this case. One to direct the clerk of this court to return to the clerk of the County Court of Travis County what purports to be the original statement of facts on the trial in the court below.
The other motion then is for a writ of certiorari to require the clerk of the court below to send up a certified copy of said purported statement of facts.
The appellant in his motion for rehearing claims that this court unjustly criticised him in its opinion heretofore rendered and that also some newspaper, in commenting thereon, criticised him. Of course, this court can not be responsible for what any newspaper may have said about him in connection with this or any other case. Certainly, this court in no way intended to criticise the appellant's attorney, and we think that the opinion delivered on the subject could not be construed as any criticism whatever upon him. Certainly none was intended by the court. The explanation made by him fully shows that he is not subject to any criticism.
This cause was originally submitted on March 15, 1911. It was briefed by appellant, the briefs filed January 24, 1911, and in his brief frequent reference is made to what purports to be the original statement of facts filed in this court. Of course, appellant's attorney knew that the said original paper was filed here, and this is not denied. On account of the large number of cases to be decided by this court, this case could not be reached nor decided until October 18, 1911.
All the members of the court are of the opinion that both of said motions of appellant should be denied for two reasons: First, because the purported statement of facts is in such condition, as shown by the original here, that this court could not consider it even if a certified copy thereof was made by the clerk of the lower court and *Page 513
sent back here; and also because the motions came entirely too late. Rule 2 of this court, 31 Tex.Crim. Rep.; 102 Texas, p. xxxvi; 102 Texas, Rules 8 and 11, pp. xxvi and xxvii.
There might be a case when this court would permit a certiorari at such a late date — after deciding the case, and on a motion for rehearing, but this case does not present such a case.
Both motions will, therefore, be overruled.
Overruled.
ON REHEARING. February 7, 1912.