Lead Opinion

Conviction of each defendant for theft; punishment, three years in the penitentiary for each.

The motion for new trial was overruled on November 19, 1929, and notice of appeal was then given. Our statute allows ninety days from the entry of such notice of appeal within which a statement *Page 653 of facts must be filed. Said ninety day period expired February 17, 1930. The statement of facts in this case was filed on February 22, 1930, and this is manifestly too late for consideration. There are no bills of exception in the record. The indictment appears to be in accordance with law, and is followed by the charge of the court, the judgment and sentence.

No error appearing, the judgment will be affirmed.

Affirmed.

Addendum

Appellants undertake to present excuse for not having the statement of facts filed in time. It seems to have been mailed to the district judge and it is claimed that after approving the statement of facts it was returned by the judge to appellants' attorney who lived in another county, instead of delivering it to the clerk to be filed. There is no claim on appellants' part that their attorney requested the judge to deliver it to the clerk upon approval. On the other hand, the judge makes affidavit to the fact that after approving the statement of facts he returned it to appellants' attorney as specifically requested to do.

There is no sufficient showing excusing the delayed filing of the statement of facts.

The motion for rehearing is overruled.

Overruled.