
    JOHNSON v. STATE.
    (No. 7245.)
    (Court of Criminal Appeals of Texas.
    Dec. 6, 1922.
    Rehearing Denied Jan. 10, 1923.)
    I. Criminal law <©=^1102 — Statement of facts not filed within 90 days after adjournment properly stricken.
    Where, after a conviction for misdemean- or theft, defendant appealed and obtained extensions of time to file statement of facts and bill of exception, which expired on April 26, 1922, but the statement of facts was not approved by the trial judge until June 29, 1922, and was not filed in fine lower court until July 3, 1922, the statement will be stricken on the state’s motion in view of Vernon’s Ann. Code Cr. Proe. 1916, art. 845, as not being filed in the lower court within 90 days after adjournment; no good cause for failing to so file it being shown.
    On Motion for Rehearing.
    2. Criminal law ⅞^>1099(7) — Excuse for failure to file statement of facts on appeal held insufficient.
    Where accused appealed from a conviction for misdemeanor but failed to file a statement of facts in the trial court within 90 days after adjournment of the term, that the statement on the last day of a 90-day extension was taken to the county attoz-ney, who declined to agree to it but took it for the purpose of further -consideration, agreeing that it might be filed back as within the time, hold not sufficient to justify the appellate court in considering such statement, since, if the county attorney was too busy to go over the statement when presented and to come to an agreement about it with appellant, it was appellant’s duty to take it to the county judge and have him either approve or reject it.
    Appeal from Williamson County Court; E. D. Love, Judge.
    6. A. Johnson was convicted of misdemeanor theft, and he appeals.
    Affirmed.
    W. C. Wofford, of Taylor, for appellant R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appellant was convicted of misdemeanor theft, and his punishment assessed at 60 days’ confinement in the county jail.

The state has filed a motion to strike out the statement of facts because not filed within the time granted by the court, nor within the time allowed by law. The trial term adjourned on January 28, 1922. Appellant was granted 30 days after adjournment to file statement of facts and bills of exception. On February 27, 1922, he was granted an extension of 30 days, and on March 26th he was granted a still further extension of 30 days, which last expired on April 26, 1922. The statement of facts was not approved by the trial judge until June 29, 1922, and was not filed in' the lower court until July 3, 1922. A statement of facts must be filed in the lower court within 90 days after adjournment unless some good cause appears why it was not so filed within that time. The record before us is silent as to the reason for such delay. The state’s motion must be sustained. See article 845, Vernon’s C. C. P., and eases collated thereunder; also, cases cited under same article in 1922 Supplement; Benson v. State, 85 Tex. Cr. R. 126, 210 S. W. 538.

No bills of exception appear in the transcript and no matters appear of record which would call for a reversal of the ease, and the judgment is therefore affirmed.

On Motion for Rehearing.

LATTIMORE, J.

In support of his motion for rehearing and as evidencing his right to have the statement of facts herein considered, appellant sets forth á lengthy statement of facts and appends to his motion a statement in writing made by the then county attorney of Williamson county. From said motion it appears that on the last day of the last extension of time given him in whicjh to file a statement of facts, he presented to said county attorney a statement of facts which said county attorney then declined to agree to, but took same for the purpose of further consideration. It is stated that thereafter the parties came to a conclusion about said statement of facts and that the said county attorney then agreed that it might be filed back as within the time. If these facts were conceded, this court would not be justified in considering a statement of facts filed after the time, whose history was as- above stated. That the statement of facts was not filed within the time allowed by law is admitted. That it was not taken to the county attorney until the last day of a 90-day extension after the adjournment of court is also made plain. If the county attorney was too busy to then go over said statement of facts and come to an agreement about it with appellant, it was his duty to have taken same to the county judge and had him either then approve or reject it. This was not done, nor is it made to appear that any effort was made to obtain the approval of said county judge to said statement of facts within the period allowed by law. It, is much to be regretted that misunderstandings between attorneys for the state and appellant may arise, but the rulings of this court and those of our statutes are well known.

The motion for rehearing will be overruled. 
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