# Slaughter v. State > Court of Criminal Appeals of Texas · June 18, 1947 · 151 Tex. Crim. 156 URL: https://www.frixlaw.com/law-library/cases/4901177 ## Case - **Full name:** Fred Slaughter v. State - **Court:** Court of Criminal Appeals of Texas - **Decided:** June 18, 1947 - **Citations:** 151 Tex. Crim. 156; 205 S.W.2d 781; 1947 Tex. Crim. App. LEXIS 1071 - **Precedential status:** Published - **Opinion:** On rehearing by Hawkins - **Judges:** Beauchamp, Davidson, Hawkins - **Cited by:** 2 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4901177 ## Opinion text ON MOTION FOR REHEARING. HAWKINS, Presiding Judge. Appellant urges that the failure to secure his bills of exception within the 30 day period after final judgment, or to get an order of extension during said 30 days was due to no negligence of himself or his attorney, and that his bills of exception should be considered, notwithstanding the delayed filing. An order of extension made by Judge Parish on February 1, 1947 appears in the original transcript. This order was made after the expiration of the 30 days. As pointed out in our original opinion there was no showing of authority for Judge Parish to make such order. It is now shown by supplemental transcript that Judge Sutton, who presided at the trial was ill during the entire months of January and February, and unable to attend to any business, and on January 28, 1947, Judge Parish was assigned to preside in Judge Sutton’s district. Final judgment was entered and notice of appeal given on December 13, 1946. After Judge Sutton became ill there was no judge to make an extension order until the assignment of Judge Parish was made. Under the circumstances no negligence on the part of appellant or his attorney to secure an extension order within the 30 days is shown. By the showing now made appellant has brought himself within the rule which permits the consideration of bills of exception when it is shown that the failure to file them in time was not due to the fault or laches of accused or his' attorney, but was the result of causes beyond his control. See 4 Tex. Jur. Sec. 306, p. 440, and authorities there cited. The bills of exception will now be considered. We do not set out the facts. They support the jury’s verdict. Bill of exception number one complains because of a remark made by the District Attorney in his closing argument. After referring to the testimony given by appellant at the trial, and to that of some of the other witnesses, the District Attorney said: “Gentlemen, are you going to believe the uncorroborated story of a man (referring to appellant) living over here at the hotel apparently máking his living by playing poker?” Objection' was interposed that there was nothing shown in the record *160 to the effect that appellant made his living playing poker. The trial judge sustained the objection and instructed the jury not to consider the statement complained of, whereupon the District Attorney said, “All I have to go by, gentlemen of the jury, is this record, and I think the evidence and circumstances of this case warrants the conclusion that that is what the defendant does for a living.” The bill shows that in the language used by counsel he was not stating an independent fact, but was saying in effect that apparently from the record defendant made his living playing poker. We do not think it necessary to set out the evidence upon which counsel based his conclusion, but after having examined same carefully we do not think counsel went far afield in drawing the conclusion stated. However that may be, the action of the court in withdrawing the statement from the jury cured the error, if any. Bill of exception number two presents complains that the verdict was received in the absence of appellant. This was one ground of appellant’s motion for new trial. To properly appraise this complaint it is necessary to know how the situation appeared to the trial court at the time he received the verdict. The record reveals that when the jury retired to consider their verdict the trial judge left the court room and went into the office of the District Clerk. Mr. Davenport, attorney for defendant, testified that he suggested to the defendant that they go across the street and get a cup of coffee, and that as they passed the door of the clerk’s office he said to the judge, “We (meaning himself and defendant) are going across for a cup of coffee and will be back in a very few minutes.” The judge’s version of the incident was that Mr. Davenport said, “I am going for a cup of coffee.” A party who was in the clerk’s office understood the attorney’s remark as did the judge. In a few minutes the jury reported that they were ready with a verdict. The judge returned to the court room and noticed that appellant was not there, and sent two deputy sheriffs out to find him. One reported back that he had not been able to locate him. The other one likewise did not find appellant, but the judge received the verdict before the second officer reported. Appellant and his attorney came into the court room after the jury had been discharged and while some of them were still at the clerk’s desk getting their pay warrents. Art. 692 of the C. C. P. specially controlling reads: “In felony cases the defendant must be present when the verdict is read unless his absence is wilful or voluntary. A *161 verdict in a misdemeanor case may be received and read in the absence of defendant.” This article was enacted in 1907 and was an ámendment of former articles on the subject. Appellant relies upon Derden v. State, 56 Tex. Cr. R. 396 , 120 S. W. 485 . This case was decided in 1909. Articles of the C. C. P. upon the subject as they were before the present article was enacted are set out in full, the only reference to the present statute being “until lately modified.” The old article, before amendment, was 749 C. C. P., and read: “In cases of felony the defendant must be present when the verdict is read, unless he escape after the commencement of the trial- of the cause; but in cases of misdemeanor it may be received and read in his absence.” At the time the article just quoted was enacted a defendant was not permitted to be at large on bail pending trial. In the present case appellant was on bail as he had a right to be under the law. In the Derden opinion reliance is had upon language found in Mapes v. State, 13 Tex. App. 85, which is quoted. We call attention to Cartwright v. State, 97 Tex. Cr. R. 230 , 259 S. W. 1085 , in which the very language of the Mayes case is discussed. See also Ex parte Casses, 112 Tex. Cr. R. 100 , 13 S. W. (2d) 869 , and Streich v. State, 78 Tex. Cr. R. 155 , 180 S. W. 266 . We call attention to these cases for the benefit of the bench and bar of the State, that they may be advised of the present status of this court’s holding. It is stated in the opinion in Derden’s case that it was not thought under the facts there present that accused had either “wilfully or voluntarily” absented himself from the court room. With this conclusion we are in accord. The judge was expecting the jury to return a verdict on Sunday. Derden had remained about the .court room all the forenoon on Sunday. In the afternoon he had gone to his boarding house. When the jury indicated that they were ready with the verdict the judge instructed an officer to find Derden. He was reached by phone at his boarding house, and told the officer he would start immediately to the court house, and the officer so notified the judge. Here the judge knew where the defendant was, and knew he was on his way to the court room, but believing it was not necessary for the defendant to be present, the judge received the verdict before defendant arrived. In the case now being considered the facts are quite dif *162 ferent. The judge did not know where defendant was, nor how long he would be away, nor what occasioned his absence. This was unquestionably a voluntary absence on appellant’s part. It is true he intended to return, and was there in a few minutes after the verdict was received. If the court had waited a few minutes the question being discussed would not be in the case. How long must the court wait before receiving the verdict in accused’s absence. Who is to determine that question? We are unable to reach the conclusion that under the facts before the trial court he abused his discretion in'receiving the verdict in appellant’s absence. The motion for rehearing is overruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4901177. Public record. Not legal advice.