Wiggs v. State , 117 Tex. Crim. 539 ( 1931 )

Conviction is misdemeanor swindling under Art. 1546, subd. 4, P. C.; punishment assessed at a fine of $25.00 and five days in jail.

The State in its brief raises the question that both the statement of facts and bills of exception were not filed within the time allowed by statute and are therefore not subject to be considered.

The motion for new trial was overruled and notice of appeal given April 15, 1930. The statement of facts and bills of exception appearing in this record show to have been filed July 30, 1930, which was 105 days after the notice of appeal had been given. This was in excess of the maximum of ninety days after notice of appeal was given. Court adjourned on the 17th day of May, 1930, and no order was entered by the trial court granting appellant any further time than the time allowed by Art. 760, subd. 5, C. C. P. Said article allows a statement of facts to be filed within ninety days from the date the notice of appeal is given and permits without an order of the court thirty days after adjournment within which to file the bills of exception. It appears from the record that on the 11th day of July, 1930, fifty-five days after adjournment of the term, the court attempted by an order to authorize that the time in which to file statement of facts and bills of exception should be extended to August 1, 1930. This court has held that orders extending the time for such filing must be made within the time allowed by statute or within the time fixed by a prior order of the court. This order extending the time in which to file bills of exception and statement of facts not having been made within thirty days after adjournment of court, the trial court was without authority to make such extension as to the time in which bills of exception could be filed and no order can be made extending such time for more than ninety days from the date of the notice of appeal for either statement of facts or bills of exception. Leago v. State, 112 Tex.Crim. Rep.,13 S.W.2d 852; Nothaf v. State, 91 Tex.Crim. Rep.,239 S.W. 215; Sanders v. State, 60 Tex.Crim. Rep.,129 S.W. 605; Armstrong v. State, 60 Tex.Crim. Rep.,130 S.W. 1011. The statement of facts in this case was filed 105 days after the overruling of the motion for new trial and the entering of notice of appeal. This was too late and the same cannot be considered. Rice v. State (Texas Crim. App.),27 S.W.2d 544.

The information appears to be regular and in proper form and is followed by the charge of the court, the judgment and sentence.

No error appearing, the judgment will be affirmed.

Affirmed.

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.

ON MOTION FOR REHEARING.