Opinion
No. 19788.
Delivered May 25, 1938.
1. — Statement of Facts — Diligence.
Where 90 days had elapsed since the date of the overruling of the motion for new trial and the giving of notice of appeal, before defendant filed affidavit stating his inability to pay for a statement of facts or give security therefor, defendant failed to use diligence required by law and request was properly refused.
2. — Statement of Facts — Bills of Exception.
In the absence of the evidence adduced upon the trial, appellate court was unable to appraise the merits of the bills of exception found in the transcript, and no error having been perceived authorizing a reversal, conviction was affirmed.
Appeal from the District Court of Nolan County. Hon. A. S. Mauzey, Judge.
Appeal from conviction for theft of chickens; penalty, confinement in county jail for 100 days.
Affirmed.
The opinion states the case.
Robert P. Brown, of San Angelo, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Theft of chickens is the offense; penalty assessed at confinement in the county jail for 100 days.
The appellant's motion for new trial was overruled and notice of appeal given on September 24, 1937. On December 23d following, the appellant filed an affidavit stating his inability to pay for a statement of facts or to give security therefor. According to the written statement of the district judge, when the affidavit of the appellant was presented to him on the date mentioned, ninety days had elapsed since the date of the overruling of the motion for new trial and the giving of the notice of appeal. Under the circumstances, we think the appellant failed to use the diligence required by law in filing his request for a copy of the statement of facts. See Tex. Jur., Vol. 4, p. 418, Sec. 286.
In the absence of the evidence adduced upon the trial, this Court will be unable to appraise the merits of the bills of exception found in the transcript. See Vernon's Ann. Texas C. C. P., Vol. 3, p. 98, Sec. 17; also 1937 Pocket Part, p. 36, Note 17.
No error having been perceived which would authorize a reversal, the judgment of the trial court is affirmed.