Chambless v. State ( 1948 )

Upon a closer inspection of this record, we find that the bills of exception were filed too late. It appears from the record that upon giving notice of appeal herein, the trial court allowed the appellant 30 days in which to prepare and file his bills of exception, and no further order relative thereto appears in the transcript. However, there appears in a supplemental transcript a statement by the trial judge that he intended to give appellant 60 days in which to prepare and file his bills of exception, and that through mistake he inserted the figures 30 instead of 60 days; that he actually granted appellant 60 days at the time that notice of appeal was given. We cannot allow the record to be corrected in this court as to what the trial judge intended to do. We can only take what the record shows that the court did actually do. This 30-day period expired on April 18th, and on May 6th thereafter the trial court attempted to extend the time for 30 days. This the court had no power to do, this order having been entered after the original 30 days had expired. See Art. 760, note 44, Vernon's C. C. P.

In Lynch v. State, 199 S.W.2d 172, it was held as follows:

"The trial judge could not grant an extension of an order granting defendant 50 days within which to file statement of facts and bills of exception, after the expiration of the 50 days."

Again, it is noted that the statement of facts is not signed and approved by the trial judge. This is necessary in order for same to be considered by us. See Lynch v. State, 199 S.W.2d 172; Walker v. State, 205 S.W.2d 369; Coleman v. State,205 S.W.2d 371; Cueller v. State, 206 S.W.2d 251; and many other cases cited under Art. 760, C. C. P., Note 24.

Should we take into consideration appellant's bills of exception, which we do not do, we would still find ourselves without a properly approved and signed statement of facts, and therefore, are unable to properly appraise such bills.

We find ourselves in agreement with the original opinion herein wherein it is said that an invoice is not a permit to transport liquor. We held in Fogle v. State, 133 Tex. Crim. 312,111 S.W.2d 246, that not only is it necessary that bills of lading evidencing ownership, etc., shall accompany liquor shipments, but also that a permit to thus transport liquor should be present at such time. Unquestionably, appellant does not claim to be a common carrier engaged in the transportation of goods for hire, and in his brief no such claim appears.

The recent case of A. R. Cartlidge et al v. Roy R. Rainey (168 Fed. Rep. 2d 841), in an opinion handed down on June 30, 1948, in the U.S. Circuit Court of Appeals for the fifth circuit, is persuasive relative to the sufficiency of appellant's defense as presented in his brief.

We think this case was properly tried and we find ourselves in agreement with the original opinion herein. Therefore, the motion for a rehearing is overruled.