Opinion
No. 11835.
Delivered June 13, 1928. Rehearing denied October 17, 1928.
1. — Assault to Murder — Statement of Facts — Bills of Exception — Filed Too Late.
Where the time granted in which to file statement of facts and bills of exception expired on March 2d 1928, and same were filed on March 3rd, thereafter, under the provisions of Art. 760, C. C. P., we cannot consider either the statement of facts or bills of exceptions so filed. See Courser v. State, 291 S.W. 236 and authorities cited.
ON REHEARING.2. — Same — Continued.
Where a statement of facts is filed after the expiration of the time granted, the burden is upon appellant to show a legal excuse for such failure in connection with his motion for rehearing. Such showing is not made by appellant in this case.
Appeal from the Criminal District Court of Harris County. Tried below before the Hon. Whit Boyd, Judge.
Appeal from a conviction for an assault with intent to murder; penalty assessed against H. B. Crowder and Sid Crowder five years, and against Walter Stein, two years in the penitentiary.
The opinion states the case.
Conrad E. Smith of Houston, for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
Appellants were convicted of assault with intent to murder. The punishment of appellants H. B. Crowder and Sid Crowder was assessed at confinement in the penitentiary for five years, and the punishment of Walter Stein was assessed at confinement in the penitentiary for two years.
Motion for new trial was overruled December 3rd, 1927, and notice of appeal was given on the same date. The time for filing statement of facts and bills of exception expired on March 2d 1928. The statement of facts and bills of exception were filed on March 3rd, 1928, which was 91 days from the time that notice of appeal was given. Under the provisions of Article 760 C. C. P., we cannot consider either the statement of facts or the bills of exception. Courser v. State, 291 S.W. 236, and authorities cited.
The judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.
Plainly the statement of facts was filed after the expiration of the ninety days allowed by statute. If there should be any legal excuse for failure to file same within the time authorized, the burden was upon appellants to show it in connection with his motion for rehearing. He files an affidavit of the district clerk, but same contains nothing amounting to any such showing as could justify this court in holding the failure to file the statement of facts within time was excusable.
The motion for rehearing is overruled.
Overruled.