Owens v. State (35 S.W.2d 726, 1931)

LATTIMORE, J.

Conviction tfor driving automobile while intoxicated; punishment, ten days in the county jail and a fine of $100.

Our attention is called by the state’s attorney with this court to the fact that appellant’s motion for new trial herein was overruled on September 6, 1929. The statement of facts was filed December 18th thereafter. Under the law the statement of facts must be filed within ninety days after the overruling of the motion for new trial and giving of notice of appeal. Manifestly this statement is filed too late to be considered. There are no bills of exception. Tbe indictment, tbe charge of.tbe court, tbe judgment, and sentence as entered nunc pro tunc, appear regular.

Tbe judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

We bave examined tbe transcript as re-guested by appellant in order to verify tbe adjourning date of tbe trial term of court, as well as tbe date upon wbicb appellant’s motion for new trial was overruled and notice of appeal given.

We regret that tbe result of our investigation still leaves us of opinion that the statement of facts may not be considered. Article 760, O. O. P. (1925), is binding upon this court and may not be ignored by us.

Tbe motion for re-bearing is overruled.