H. W. Wade v. The State, 22 Tex. Ct. App. 256

Willson, Judge. The Assistant Attorney General moves to strike out of the record that portion thereof which purports to be a statement of facts, because the same is not authenticated in the manner required by law. We find the statement of the evidence preceded by the following statement and certificate of the trial judge, to wit: “ The State of Texas v. H. W. Wade. Counsel for the State and defendant having failed to agree on a statement of facts proved on the trial of the above cause, I submit the following as substantially the facts proved. J. S.

Sherrill, County Judge;” and then follows the statement of the evidence; and there is no other authentication of the same. It appears, however, that the paper was filed in the cause in due time. The statute requires, where the parties do not agree to a statement of facts, that the judge shall “make out and sign, and file with the clerk, a correct statement of the facts proven on the trial, and such statement shall constitute a part of the record.” (Rev.

Stats., Art. 1378.) The statute does not provide any form to be used in authenticating the statement, nor does it require in express terms that the signature of the judge shall appear at the conclusion of the same. If it be signed by the judge and purports upon its face to be a correct statement of the facts proven on the trial, it is sufficiently authenticated. Was the paper before us signed by the judge? Our statute provides that ordinary signification shall be given to words (Rev.

Stat., Art. 3138); and, again, that “words which are not specially defined in the statute are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject matter relative to which they are employed.” (Penal Code, Art. 10.) There is no statutory definition of the word “sign.” What, then, is its ordinary signification as understood in common language, considering the context and subject matter relative to which it is used in

Article 1378, Revised Statutes? We are of the opinion that it means that the judge shall subscribe his name officially to the statement of facts; that is, that he-shall sign his name officially at the conclusion of the statement. As used in this statute, the word sign is synonymous with the word subscribe, which means to place a signature at the bottom of a written instrument. (Webster’s Die., words “sign” and “subscribe”) Mr. Bouvier says, “by signature is understood the act of putting down a man’s name at the end of an instrument, to attest its validity.” (2 Bouv.

Law Dic., word “signature.”) There are some instances in which it has been held that an instrument in the hand writing of the party whose act it purports to be, beginning, “I, A. B.,” etc., is sufficiently signed to render such instrument valid as the act of such party. (2 Bouvier Law Dic.. “Signature;” 7 Wait’s Ac. & Def., p. 38, sec. 8.) But these decisions, even if correct, which has been questioned, are not applicable to the question now before us, in as much as we must be guided in our construction of the law by the statutory rules above cited.

Having in view those rules, we must hold that the intent of the statute is that the statement of facts must be authenticated by the official signature of the judge subscribed thereto, and that the placing of his signature at the beginning, or in some other place in the indictment, will not authenticate the statement. These being our views, the motion of the Assistant Attorney General is sustained. Opinion delivered November 13, 1886.

There are several questions presented in the record and signed by counsel for defendant, but they are all of a character that can not, in the absence of a statement of facts, be determined. The indictment is good, and the charge of the court conforms to the indictment, and, as far as we are able to perceive, not having the facts of the case before us, there is no error in the conviction, and the judgment is affirmed. Affirmed.