Malone v. State, 75 S.W.2d 104

Malone v. State

75 S.W.2d 104 | Tex. Crim. App. | 1934

Rehearing

On Motion for Rehearing.

LATTIMORE, Judge.

At the time this case was disposed of originally there was not on file in the- office of our clerk any statement of facts. At this time the statement of facts has been forwarded and is duly on file.

However, the same serious objection arises to our consideration of the statement of facts which caused us to decline to consider appellant’s ten bills of exception, viz., said statement of facts was filed in the office of the clerk of the district court more than thirty days after the date of final judgment. It being apparent that the term of the trial *105court extended more than eight weeks, under the provisions of article 760, suhd. 5, O. O. P., it was imperative that the statement of facts as well as the bills of exception must have been filed in the office of the clerk of the trial court within thirty days after the final judgment, or else within such time there must have been made an extending order. No such order was made within thirty days, as observed in our original opinion.

Being unable to consider either appellant’s statement of facts or bills of exception, the motion for rehearing will be overruled.

Lead Opinion

LATTIMORE, Judge.

Conviction for burglary; punishment, twelve years in the penitentiary.

The record is here without any statement of facts. By supplemental transcript appellant seeks to bring forward ten bills of exception. The term of the, trial court began on January 1, 1934, and adjourned on the 31st of March, 1934, it being apparent that the term of court lasted 'longer than eight weeks, in which case, under the terms of article 760, subd. 5, C. C. P., it is required that bills of exception shall be filed within thirty days after final judgment is rendered in any particular case, unless the court shall by order entered of record in such case extend the time for filing same.

On March 30, 1934, appellant’s motion for new trial was overruled, and he was then sentenced. On April 30, 1934, the court attempted to make an order giving appellant fifteen days’ additional time in which to file bills of exception. The thirty days allowed by statute for filing of such bills of exception expired on April 29th; hence the trial court was without power to make the order just referred to. The bills of exception appearing in said supplemental transcript were filed on May 15, 1934, and hence were filed too late to be considered. These are matters which are fixed by statute which this court has upheld in many opinions. All matters of procedure appear regular.

No error appearing, the judgment will be affirmed.