Lead Opinion

Conviction for being a delinquent child; punishment, four years confinement in the State Juvenile Training School at Gatesville.

Appellant was indicted for burglary, but upon a hearing on an affidavit of juvenility filed by his father, the case was transferred to the juvenile docket and there heard before a jury upon a full presentation of the facts. The jury found appellant guilty and assessed his punishment at four years confinement in the Juvenile Training School for Boys. *Page 217

There is in the record but one bill of exceptions, and same appears to have been filed too late. The order overruling the motion for new trial bears date of December 15, 1927, and in said order appellant was allowed eighty days from said date within which to file bills of exception. This time expired on March 5, 1928. The bill of exceptions referred to appears to have been filed on March 7, 1928. This is too late, and we are unfortunately deprived of the right to consider said bill. Benson v. State, 85 Tex.Crim. Rep..

No error appearing, the judgment is affirmed.

Affirmed.

Addendum

Appellant relies on Art. 2246 Rawle C. S., 1925, as authorizing bills of exception to be filed within 90 days from final judgment. The statute in question refers to civil cases only. We must be controlled by Art. 760, Subdivision 5, C. C. P. as governing in criminal matters, under which the bills of exception cannot be considered. Holden v. State, 98 Tex. Crim. 592,267 S.W. 275; Courser v. State, 106 Tex.Crim. R.,291 S.W. 236. Sentence was pronounced and notice of appeal given on the 15th day of December. Under Art. 760 Cow. C. P. the court was without authority in any event to extend the time for filing bills more than 90 days from notice of appeal. In the present case the court granted only 80 days and no further extension of time was allowed. Hence a bill filed after the 80 days was too late.

The motion for rehearing is overruled.

Overruled.