Moore v. State (12 S.W.2d 805, 1928)

MORROW, P. J.

The offense is the unlawful sale of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.

The appellant was tried on the 5th day of March. Notice of appeal was entered on the 24th of that month. The statement of facts was filed on the 20th of July. On the same day the three bills of exceptions found in the record were filed. The maximum time within which the law would permit the filing of the statement of facts and bills of exceptions was 90 days after March 24th, which time expired June 22, 1928. The statute (article 760, C. C. P. 1925) precludes the consideration of the bills of exceptions and statement of facts, for the reason that neither was filed within the time allowed by law. The order of the trial judge allowing 90 days after the adjournment of court within which to file the bills of exceptions and statement of facts would not be effective after the expiration of the 90 days from the date upon which notice of appeal was given. See article 760, note 44, Vernon’s Tex. C. C. P. 1925, vol. 3, p. 122; Chisholm et al. v. State, 108 Tex. Cr. R. 401, 1 S.W.(2d) 613; Williams v. State, 108 Tex. Cr. R. 124, 299 S. W. 258. The motion of the state to have the bills of exceptions and statement of facts (disregarded must be sustained.

No fundamental error in the record has been perceived.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant makes a motion, and supports same by affidavit, which strongly presents an appeal to the humanity and clemency of the Governor, but which cannot be given effect by this court. We are not privileged to override the statute because of the ignorance, race, or sex of the person asking us so to do. It is plainly required by statute that bills of exception and statement of facts in an appeal in a criminal case, must be filed within 90 days after the date of the giving of notice of appeal, else this court cannot consider same. Article 760, C. Q.-P. If the facts stated in the affidavits attached to appellant’s motion are true, she has been unquestionably misled and mistreated by those to whom she confided her interests upon this trial. We are compelled to follow the law. The bills of exception and statement of facts were not filed in time. Same cannot be considered. ,

The motion for rehearing will be overruled.