Lead Opinion

Conviction for transportation of intoxicating liquor, punishment one year in the penitentiary.

Our attention is called by the State's Attorney to the fact that the statement of facts was filed ten days after the expiration of the time allowed by statute for filing same. It is urged that we cannot consider same. The contention of the state appears in accord with the facts.

Six bills of exception appear in the transcript, each of which has been examined, but the materiality and propriety of the matter contained in each cannot be appraised by us in the absence of a statement of facts. The bills are qualified in each instance and present no error. One of said bills asserts that a juror was taken upon the case who expressed prejudice against appellant after his selection on the jury. If any facts were heard by the court relating to this matter when it came before him in connection with the motion for new trial, same were in no way preserved or brought here.

Finding no error in the record, the judgment will be affirmed.

Affirmed.

Addendum

The fact that the statement of facts was filed too late, as stated in our former opinion, is not denied. Appellant files with this record certain correspondence, also the ex parte affidavits of two of the jurors who sat in this case. Said correspondence suggests no misconduct or fault on the part of any of the officers of the trial court causing or contributing to the failure of appellant to file his statement of facts within *Page 583 the time required by law. We cannot accept or permit an attack upon the regularity of the conduct of a trial by ex parte affidavits. If appellant, through no fault of his, failed to have his record in condition as required by statute, this is to be regretted; unless, however, it be shown that such failure was through no lack of diligence on the part of appellant, and was the result of the wrong-doing of some one officially connected with the preparation and filing of such statement of facts, we would not be authorized to consider same.

The motion for rehearing will be overruled.

Overruled.

Morrow, P. J., not sitting.