
    COLLIER v. STATE.
    (No. 10563.)
    (Court of Criminal Appeals of Texas.
    Jan. 19, 1927.)
    Criminal law <§=GG99 (6)— Statement of facts, filed after 90-day limit, may be considered, where prepared by court on parties’ failure to agree (Code Cr. Proc. 1925, art. 760, subd. 4).
    Failure to file statement of facts within 90 days did not prevent their consideration on appeal, where court certified that parties failed to agree, and that each party submitted his statement to court, who thereupon prepared statement of facts, in view of Code Cr. Proc. 1925, art. 760, subd. 4, which provides that, when duty devolves upon court to prepare statement1 of facts, he shall have such time to do so as he deems necessary, not exceeding 40 days after receiving statement of facts of defendant.
    Appeal from Harris County Court at Law; Ben E. Wilson, Judge.
    Guy Collier was convicted of negligent homicide, and he appeals.
    Affirmed.
    AlhVyn W. Pirtle, of Houston, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   LATTIMORE, J.

Conviction in county court at law of Harris county of negligent homicide, resulting from negligent operation of automobile; punishment fixed at a fine of $500.

We find in the record no bills of exception. The statement of facts is short, comprising but two pages, and seems amply sufficient to support the judgment. The state’s attorney raises the question that said statement of facts is not filed within the time required by statute. Appellant’s motion for new trial was overruled on February 8,1926, at which time he gave notice of appeal. Under our Revised Code Criminal Procedure of 1925, art. 760, appellant would have 90 days from the giving of notice of appeal in which to file his statement of facts, which time would expire on May 8,1926. The statement of facts in this case was filed on May 28, 1926. However, we observe that in this ¡ case the learned trial court certifies that the parties failed to agree upon a statement of tacts, and that each party submitted his statement to the court, who therefrom has prepared the statement of facts, which the clerk was ordered to file. Subdivisions 4 of article 760,1925, O. C. P., provides that, when the duty devolves upon the court to prepare the statement of facts, he shall have such time in which to do so as he deems necessary, not to exceed 40 days after he receives the defendant’s statement of .facts. .Finding nothing in the record from which we can conclude that the statement of facts on file herein was filed more than 40 days after the reception by the trial judge of the appellant’s statement of facts, we are inclined not to agree with the state’s contention, but have considered'the statement of facts. In our opinion, same amply justify the conclusion reached by the jury and support the judgment.

Finding no error in the record,'the judgment will be affirmed.  