Hunter v. State , 116 Tex. Crim. 344 ( 1930 )

Conviction is for selling intoxicating liquor, punishment four years in the penitentiary.

The charge was that appellant sold intoxicating liquor to Lawrence Ethridge. Testimony from this witness was positive as to the purchase of whisky from appellant which was strongly supported by the evidence of two other witnesses. Appellant denied the transaction; he filed application for suspended sentence and testified that he was twenty-three years of age.

The only bill of exception in the record complains at the overruling of the motion for new trial based on alleged misconduct of the jury. The motion for new trial was overruled on September 6th and ninety days granted for filing statement of facts and bills of exception. This time expired on December 5th. The bill was not filed until January 6th, being a month too late. It appears that within the ninety day period the trial judge undertook to grant a thirty day additional extension. This he had no authority to do. Art. 760 Cow. C. P., Subdivision 5; Retza v. State, 95 Tex.Crim. R.,255 S.W. 423; Naranjo v. State, 96 Tex.Crim. R., 259 S.W. 938; Simpson v. State, 110 Tex.Crim. R., 10 S.W.2d 567. The evidence heard on the motion is before us in a separate statement of facts which we had examined before noticing that the bill was filed too late. If the question was properly before us we observe nothing which in our opinion would have entitled appellant to a new trial.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.