
    CLAMPITT v. STATE.
    (No. 7809.)
    (Court of Criminal Appeals of Texas.
    June 20, 1923.
    Rehearing Denied Dec. 12, 1923.)
    1. Criminal law &wkey;>IO®9(7) —Statement of facts not considered because filed too late.
    A statement of facts filed on April 11th, the time set by the court having expired, April 4th, could not be considered over the state’s objection, in absence of a showing that the delay was not owing to a want of diligence on the part of appellant.
    2. Criminal law 099(7) — Diligence demanded in settlement of record.
    The settlement of the record is left by law in the hands of the court and attorneys who tried the case, and diligence is demanded.
    3. Criminal law <&wkey;>l09'2(8)— Evidence held to show lack of diligence in filing appeal papers.
    Evidence that defendant’s attorney sent his bills of exception and statement of facts by mail from a town 30 miles distant, addressed to the district attorney, that there were several trains which in ordinary course would have carried the mail promptly and enabled them to reach the district attorney on the day they were mailed, held to show a lack of due diligence to prevent filing six days late.
    Appeal from District Court, Red River County; Ben H. Denton, Judge.
    John Clampitt was convicted of assault with intent to murder, and he appears.
    Affirmed.
    T. T. Thompson, of Clarksville, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State..
   MORROW, P. J.

Conviction is for assault with intent to murder; punishment fixed at confinement in the penitentiary for a period of two years.

The adjournment of court took place on the 5th of January. The statement of facts was filed on the 11th day of April following. The time allowed by. the order of the court in which to file the statement of facts expired on April 4th. The state’s objection to the consideration of the statement of facts must be sustained.

The same condition applies to the bills of exception.

In an affidavit filed by appellant’s attorney, it is revealed that the bills of exception and statement of facts were sent in the mail from Clarksville, Tex., addressed to the district attorney at Paris, Tex., a distance of 30 miles; that there were several trains which, in the ordinary course, would have carried the mail promptly and enabled the documents to have reached the district attorney on the day that they were mailed. It was unfortunate that the documents were filed too late. The settlement of the record is left by law in the hands of the court and the attorneys who tried the case, and diligence is demanded. Where the delay is not due to a lack of diligence upon the j>art of the appellant, this court has power to protect him against injury in the event he is deprived of a,statement of facts or bill of exceptions; where the delay is due to his want of diligence, the contrary is true. The time for filing the statement of facts and bills of exception, and the diligence required, have often been made the subject of discussion by this court. See George v. State, 25 Tex App. 229, 8 S. W. 25; Exon v. State, 33 Tex. Cr. R. 461, 26 S. W. 1088; Richardson v. State, 71 Tex. Cr. R. 111, 158 S. W. 517; King v. State, 82 Tex. Cr. R. 145, 198 S. W. 782; Carpenter v. State, 83 Tex. Cr. R. 87, 201 S. W. 996; Stanford v. State, 42 Tex. Cr. R. 343, 60 S. W. 253; Pollard v. State, 45 Tex. Cr. R. 121, 73 S. W. 953; Sullivan v. State. 62 Tex. Cr. R. 410, 137 S. W. 700; Vickers v. State, 90 Tex. Cr. R. 609, 236 S. W. 483.

As the record appears before us, we are constrained to regard this court unauthorized to consider the bills of exception or statement of facts. In the absence of these, there is nothing presented for review.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant earnestly insists that his bills of exception and statement of facts should have been considered. We regret that our views do not coincide with his; but, in order to ascertain if perchance any injury had resulted to him from our refusal to consider them, we have examined them and find that the bills as qualified by the learned trial judge present no error, and the facts amply justified the verdict.

The motion for rehearing is overruled. 
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