Opinion
No, 11033.
Delivered June 8, 1927. Rehearing denied October 19, 1927.
1. — Theft — No Statement of Facts — Nor Bills of Exception.
There being no statement of facts nor bills of exception in this record and no fundamental error appearing, the judgment is affirmed.
ON REHEARING.2. — Same — Statement of Facts — Time for Filing.
On motion for rehearing appellant complains that the transcript in this case was forwarded before the expiration of the time granted in which to file his statement of facts, and by reason thereof he has been denied a statement of facts. He fails to show that a statement of facts was filed in the trial court at any time, nor that the premature filing of the record in this court prevented him from filing the statement of facts in the trial court.
Appeal from the District Court of Gregg County. Tried below before the Hon. P. O. Beard, Judge.
Appeal from a conviction for theft, penalty two years in the penitentiary.
The opinion states the case.
No brief filed for appellant.
Sam D. Stinson, State's Attorney, and Robert M. Lyles, Assistant State's Attorney, for the State.
The offense is theft of property over the value of fifty dollars, punishment fixed at confinement in the penitentiary for a period of two years.
The indictment appears regular. The record is before this court without a statement of facts or bills of exception. No fundamental error having been perceived or pointed out, the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.
The appellant was tried on the 1st day of March, 1927, at a term of court ending on the 12th day of the same month. The motion for new trial was overruled on the 4th day of March and an order entered allowing eighty days from that date within which to file a statement of facts and bills of exceptions. The record was filed in this court on May 20, 1927, and was accompanied by neither statement of facts not bills of exceptions, and none of them have been filed since. In his motion for rehearing appellant complains of the judgment of affirmance upon the ground that the record was filed and action taken upon it before the expiration of the eighty days during which he had the privilege of preparing and filing the statement of facts and bills of exceptions. If his motion were accompanied by the statement of facts or bills of exceptions filed in the trial court within the eighty days, this court would feel constrained to review the record in the light of the evidence heard upon the trial or the complaints of the court's ruling properly preserved. In the motion, however, there is no suggestion that either the statement of facts or bill of exception has been filed in the trial court, nor that there exists any recognized excuse for the failure to file them. There being nothing to show that the appellant was, in any sense, prejudiced by the premature filing of the record, the motion for rehearing is without merit and is therefore overruled.
Overruled.