Rhodes v. State ( 1931 )

Conviction is for selling intoxicating liquor, punishment being one year in the penitentiary.

Only one bill of exception is brought forward. The State's attorney calls our attention to the fact that it was filed too late. The motion for new trial was overruled on the 9th day of April, and sixty days from that date granted in which to file statement of facts and bills of exception. The sixty days expired on the 8th day of June. The bill was not filed until the 14th day of June, six days too late. The bill cannot be considered. Article 760, C.C.P. (1925); Bivens v. State,111 Tex. Crim. 561, 15 S.W.2d 7; Phipps v. State,112 Tex. Crim. 502, 17 S.W. 811. Other cases are found in Note 36 under Art. 760, Vernon's Ann. C. C. P. of Texas, Vol. 3.

The statement of facts was also filed on the 14th day of June, but this being within 90 days from the overruling of the motion for new trial it may be considered under the provisions of Sec. 5 of Art. 760, C. C. P. (1925). Frederickson, the alleged purchaser, testified positively that he bought two gallons of whisky from appellant at a time when Rives was with witness; that in leaving town in a car in which the whisky was witness ignored a stop sign, was chased by a motor cop, had a wreck, and that he and Rives were injured and taken to a hospital. Rives' evidence supported Frederickson. The motor cop related the incident of chasing appellant's car, the wreck, and about finding some jars containing whisky in the car, and others broken with whisky over the floor of the car. Appellant denied the sale. He claimed that appellant was at his house not to buy but to sell whisky. Other evidence was introduced by appellant seeking to show that appellant had gotten a load of whisky in Fort Worth, a part of which was in the car when wrecked. The issues of fact raised by the testimony were settled by the jury in the State's favor

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.