
    LAWS v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1913.
    On Motion for Rehearing, March 18, 1914.)
    Criminal Law (§ 1092) — Bill ox Exceptions — Time ox Filing — Diligence.
    During the following week after court adjourned on August 16th, accused prepared a bill of exceptions and went to the county attorney’s office several times to submit the bill to him, and learned that he was in another city, and then took the papers to the county judge who declined to act upon them until the county attorney had seen them. On the 19th day after adjournment the county attorney claimed that he was then too busy to pass upon the bill, but would do so later. Accused then left the papers with the county attorney and did not again present them to the judge, and they were not presented to the judge until September 12th, 27 days after adjournment, when they were signed and filed. Held, that accused did not show such, diligence in having the bill of exceptions approved and filed as required by statute and the law, so that it cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    Appeal from Ft. Bend County Court; W. I. McFarlane, Judge.
    Mack Laws was convicted of aggravated assault, and appeals.
    Affirmed.
    J. C. Florea, of Richmond, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

From a conviction of aggravated assault with a fine of $200, appellant prosecutes this appeal.

There is in the record what purports to be a statement of facts and some bills of exceptions, but neither of them show to have been filed in the lower court The Assistant Attorney General on that account makes the point that they cannot be considered, which is correct. There is no question raised by the motion for new trial which can be reviewed without a statement of facts or bills of exceptions.

The judgment is therefore affirmed.

On Motion for Rehearing.

At a former day of this term this cause was affirmed, as what purported to be a statement of facts and bills of exception were not filed in the court below and could not be considered.

Appellant has made a motion for rehearing and accompanies it with some affidavits seeking to have his bills of exceptions and statement of facts considered. These affidavits show, in substance, that the following week after the court adjourned on August 16, 1913, he prepared a statement of facts and bills of exceptions and went to the county attorney’s office to submit them to him, made several trips for that purpose, but found on inquiry that the county attorney was absent in either Houston or Galveston. The affidavits do not in any way show that he attempted to communicate with him at either of these points, nor do the affidavits show when he returned. When he could not find the county attorney, he took the papers to the county judge and asked him to act upon them, but the county judge declined to do so until the county attorney had passed on them. It is further shown that on the 19th day after adjournment of tlie court, he did see the county attorney, and asked him to then pass upon his statement of facts and bills of exceptions, but the county attorney claimed that he was busy and could not do it that day, but would take them up later. He at that time left these papers with the county attorney. He did not then again present them to the county judge, and they were not presented to the county judge for any action again until September 12, 1913. It appears that they were on that day, and not before, signed, agreed to, and filed. This was on the 27 th day after the adjournment of court. Under the uniform holding of this court, this does not show such diligence as is required by the statute and the decisions. Under the law we cannot consider these papers. Jones v. State, 163 S. W. 75; Bryant v. State, 35 Tex. Cr. R. 394, 33 S. W. 978, 36 S. W. 79; Bell v. State, 31 Tex. Cr. R. 521, 21 S. W. 25f9.; Gowan v. State, 164 S. W. 6, recently decided, but not yet officially reported; Riojas v. State, 36 Tex. Cr. R. 182, 36 S. W. 268; Durham v. State, 155 S. W. 222. It is needless to cite the many other cases to the same effect.

The motion for rehearing is overruled.  