Clark v. State

The offense is the unlawful manufacture of intoxicating liquor, punishment fixed at confinement in the penitentiary for one year.

The statement of facts was filed within ninety days after adjournment of the term of court at which the trial took place, but more than ninety days after the motion for new trial was overruled and notice of appeal given. The court allowed ninety days after adjournment. However, the statute covering the matter restricted his authority to the allowance of ninety days after notice of appeal. See Art. 760, C. C. P. 1925. This court is not authorized to consider a statement of facts not filed within the space of time allowed by statute. See Bailey v. State, 282 S.W. 804; Johnson v. State, 283 S.W. 807.

We find nothing in the record bringing it within the rule stated in George v. State, 25 Tex.Crim. App. 229, by which the statement of facts might be considered if the delay was not due to a lack of diligence upon the part of the appellant. See Clampitt v. State, 96 Tex.Crim. Rep.; Dyer v. State,96 Tex. Crim. 304, and cases cited; also Vernon's Tex.Crim. Stat., Vol. 2, p. 837, note 20.

In the record there is found a bill of exceptions complaining of the refusal of the court to continue the case. The application for a continuance is addressed to the sound judicial discretion of the court. On appeal, the averments in the motion to continue are to be considered in connection with the evidence adduced upon the trial so that the appellate court may determine, in the light of the evidence, whether the absent testimony was such as to show that in refusing to grant a new trial there was an abuse of discretion by the trial court. Without the evidence heard upon the trial in the present case, this court is not able to determine that in refusing to continue the case the court was in error. The precedents upon the subject are numerous. Many of them are collated in Vernon's Tex.Crim. Stat., Vol. 2, p. 320, note 34.

Finding nothing in the record which would justify this court in ordering a reversal, the judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.