Opinion
No. 13509.
Delivered June 11, 1930.
1. — Theft — Statement of Fact — Time of Filing.
Under provision of Art. 760 C. C. P. (1925) Subdivision 5, appellant was entitled to thirty days after adjournment of court, without an order extending the time, in which to file statement of facts.
2. — Same.
No order of extension may carry the time of filing statement of facts beyond ninety days from the date of notice of appeal.
3. — Same.
The order extending the time for filing the statement of facts ninety days from the adjournment of court was unauthorized.
4. — Same.
Since the statement of facts was filed too late, it will not be considered.
Appeal from the Stephens County Court. Tried below before the Hon. W. J. Arrington, Judge.
Appeal from a conviction for theft of property under the value of $50.00; penalty, ten days in jail, and $10.00 fine.
The opinion states the case.
J. M. Rieger, of Breckenridge, for appellant.
A. A. Dawson, State's Attorney, of Austin, for the State.
Conviction is for theft of property under the value of $50.00, punishment being assessed at ten days in jail and $10.00 fine.
The motion for new trial was overruled on December 7th, and the court gave 90 days from adjournments to file statement of facts. Court adjourned December 28th.
By provision of Subdivision 5, Art. 760, C. C. P. (1925) appellant was entitled to thirty days after adjournment without an extension order to file his statement of facts. The article further provides:
"* * * and upon good cause shown, the judge trying the cause may extend the time in which to file a statement of facts and bills of exception, and shall have the power in term time or vacation, upon the application of either party for good cause, to extend the several times for the preparation and filing of the statement of facts and bills of exception, but the same shall not be so extended as to delay the filing thereof within ninety days from the date the notice of appeal is given."
It is positively stated that no order of extension shall carry the time of filing beyond 90 days from the date of notice of appeal, and in so far as the court's order giving 90 days from adjournment had the effect of extending the time beyond that permitted by the law it was unauthorized. Simpson v. State, 110 Tex.Crim. R., 10 S.W.2d 567, and cases therein cited. See also authorities collated under Art. 760, Vernon's C. C. P. of Texas, Vol. 3.
The 90 days from notice of appeal expired on March 2d. The statement of facts was not approved by the trial judge until March 15th and was filed in the court below two days later. Under the plain provision of the statute the statement of facts was filed too late and cannot be considered.
The judgment is affirmed.
Affirmed.