Robinson v. State

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

The motion for new trial was overruled on the 13th day of June, 1930, at which time notice of appeal was given and ninety days granted in which to file statement of facts and bills of exception.

The time expired on the 11th day of September. The statement of facts and all bills of exception were approved and filed on the 12th day of September, which was one day beyond the period of extension. Under such circumstances neither the statement of facts nor bills of exception may be considered. Subdivision 5, Art. 760, C. C. P. (1925); Newsome v. State, 105 Tex. Crim. 325,288 S.W. 212; Triggs v. State, 105 Tex. Crim. 578,289 S.W. 391. Many other cases to the same effect will be found collated in Vernon's Ann. Texas C. C. P., Art. 760, note 36.

It is noted that the judgment condemns appellant to be guilty of "selling liquor," and the sentence is likewise faulty. Selling liquor is no offense unless the liquor be intoxicating. The judgment and sentence will be reformed to adjudge appellant to be guilty of selling intoxicating liquor and as thus reformed the judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.