Summary
holding that there was no reversible error when a defendant conceded in a pretrial statement that he had a connection with stolen silverware and later complained on appeal about testimony concerning the silverware on the ground that the State did not establish a connection between the silverware and him
Summary of this case from Miles v. StateOpinion
No. 21181.
Delivered October 30, 1940. Rehearing Denied December 18, 1940.
1. — Bills of Exception — Filing.
Bills of exception filed more than ninety days after notice of appeal was given could not be considered by the Court of Criminal Appeals.
ON MOTION FOR REHEARING.2. — Statement of Facts — Filing — Trial Court's Approval.
A written communication, purporting to be in defendant's own handwriting and signed by him, in which he prayed for a rehearing and reversal of the judgment of conviction and set out what defendant claimed to be the facts in the case, could not be considered as a correct statement of the facts proven upon the trial of the case, where it was not approved by the trial court, and was not filed within the time prescribed by law.
3. — Statement of Facts — Bills of Exception — Indictment.
Where the statement of facts and bills of exception were not filed within the time prescribed by law, no questions were presented for review except the sufficiency of the indictment.
Appeal from District Court of Gregg County. Hon. Clarence E. McGaw, Judge.
Appeal from conviction for robbery; penalty, confinement in penitentiary for five years.
Affirmed.
The opinion states the case.
Shead Smith, of Longview, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Appellant was given a penalty of five years for robbery. The notice of appeal was filed on November 16, 1939. Bills of exception were filed February 17, 1940, more than ninety days thereafter. We are unable to consider the bills of exception. Floyd v. State, 133 S.W.2d 894; Page v. State, 117 S.W.2d 785. See C. C. P., Art. 760, Sub. 5.
We find nothing fundamental in the record. The judgment of the trial court is affirmed.
ON MOTION FOR REHEARING.
Appellant has forwarded to this Court a written communication purporting to be in his own handwriting and signed by him in which he prays for a rehearing and a reversal of the judgment of conviction. He sets out therein what he claims are the facts in the case, but we cannot consider it as a correct statement of the facts proven upon the trial of the case for two reasons: First, because it is not approved by the trial court; and second, because it was not filed within the time prescribed by law.
On his trial appellant was represented by counsel of his own selection who, upon conviction, gave notice of appeal and who had a statement of facts made by the court reporter, but it, as well as the bills of exception, was not filed within the time prescribed by law. Hence no questions were presented for review except the sufficiency of the indictment, and it seems to be in due and proper form.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.