Opinion
No. 11831.
Delivered October 31, 1928.
1. — Theft — Statement of Facts — Time of Filing — Extension Limited.
A statement of facts must be filed not later than 90 days after notice of appeal is given, and a trial judge is without authority to extend the time beyond the ninety days. See Art. 760 C. C. P. Retza v. State, 95 Tex.Crim. Rep. and other cases cited.
2. — Same — Bill of Exception — Time of Filing.
Where a bill of exceptions was filed on the last day of the time granted, but was not approved by the court until the day after the expiration of the time, the day approved controls and such bill cannot be considered. A bill of exceptions cannot be filed back, and such filing gives it no validity. See Gowan v. State, 73 Tex.Crim. Rep. and other cases cited.
Appeal from the District Court of Wichita County. Tried below before the Hon. P. A. Martin, Judge.
Appeal from a misdemeanor conviction for theft; penalty, sixty days in the county jail.
The opinion states the case.
No brief filed for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
Appellant was charged by indictment with theft of property over the value of $50.00. He was convicted of misdemeanor theft and his punishment assessed at confinement in the county jail for sixty days.
His motion for new trial was overruled on December 31st and he was granted ninety days from that date in which to file bills of exception and statement of facts. This time expired March 30th. On that date the trial judge made an order in which he attempted to grant an additional ten days. This order was without authority of law and ineffectual. The court had no power to extend the time beyond the ninety days. Art. 760, Subd. 5, C. C. P., Retza v. State, 95 Tex.Crim. R., 255 S.W. 423; Naranjo v. State, 96 Tex.Crim. R., 259 S.W. 938.
The only bill of exception in the record attempts to bring forward for review all the matters set up as grounds of the motion for new trial. Even if it could be considered it is insufficient. Holt v. State, 98 Tex.Crim. R., 265 S.W. 394; Ivory v. State, 101 Tex.Crim. R., 274 S.W. 565; Cuellar v. State, 7 2d S.W. 565. But the bill cannot be considered. While it bears file mark of date March 30th it also shows not to have been approved by the judge until March 31st which was one day too late. It was in no condition to become a part of the record until approved, and should not have been filed until after approval. If it was filed back such filing gave it no validity. Gowan v. State, 73 Tex.Crim. R., 164 S.W. 6; Hinton v. State, 95 Tex.Crim. R., 252 S.W. 525; Chisholm v. State, 1 2d S.W. 613 and authorities therein cited. What has been said of the bill of exception applies equally to the statement of facts. It bears the file mark of the clerk of the trial court of date March 30th, but was not approved by the trial judge until April 9th. Upon the face of the record the motion of our state's attorney that the statement of facts and bills of exception be stricken from the record must be sustained.
The judgment is affirmed.
Affirmed.