
    Wray Gill v. The State.
    No. 23956.
    Delivered March 10, 1948.
    Rehearing Denied April 21, 1948.
    
      
      Albert W. Searcy, of Junction, for appellant.
    
      Ernest S. Goens, State’s Attorney, of Austin, for the State.
   KRUEGER, Judge.

The offense is forgery. The punishment assessed is confinement in the state penitentiary for a term of two years.

It appears from the record that appellant’s motion for a new trial was heard and overruled on the 13th day of August, 1947, at which time he gave notice of appeal to this Court. Under Art. 760, C. C. P., he had 90 days in which to file a statement of facts. However, the statement of facts was not filed in the court below until the 21st day of November, 1947, which was more than 90 days after he gave notice of appeal. Therefore, the same cannot be considered by this Court. See Robinson v. State, 116 Tex. Cr. R. 652. In the absence of a statement of facts, we cannot determine the insufficiency of the evidence, nor can we properly appraise his requested special charges or bills of exception.

Appellant complains of the action of the trial court in overruling his motion to quash the second count in the indictment. The copy of the indictment as the same appears in the record is sufficient to charge him with knowingly passing a forged instrument. However, the court submitted the case to the jury on the first count alone in which he was charged with the offense of forgery. Therefore, we overrule this complaint.

The judgment of the trial court is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING.

BEAUCHAMP, Judge.

The original opinion correctly disposes of the appeal. Appellant’s attorney, however, has filed a motion for rehearing and attaches thereto his affidavit in which he takes the full responsibility for the failure to file the statement of facts within the time required by law. Unfortunately for his client, the attorney’s failure to perform his duty is charged to the client and proof of his failure — in this case the admission of the attorney— can give no force to excuse the failure to file the statement of facts within the time prescribed by law.

The motion for rehearing is overruled.  