
    Joe Munoz v. The State.
    No. 16511.
    
    Delivered March 7, 1934.
    Reported in 69 S. W. (2d) 119.
    The opinion states the case.
    /. E. Greer, of San Antonio, for appellant.
    
      Lloyd W. Davidson, State’s Attorney, of Austin, for the State.
   MORROW, Presiding Judge.

Aggravated assault is the offense; penalty assessed at confinement in the county jail for thirty days.

It appears from the transcript that appellant was charged by complaint and information with an assault upon Carmen Huron, a female.

Appellant waived a jury and submitted the issues to the court, who rendered a judgment of guilty and assessed the penalty as above stated.

In the motion for new trial, which was overruled, the appellant claims that he first employed attorneys, but upon their advice that the case would probably not be tried, he discharged them. When the case was called for trial on the 23rd day of August, 1933, he was unprepared and sought a postponement, which was denied. In the motion for new trial there is a statement of considerable length in which appellant undertook to set up the facts upon which he relied for a new trial. The purport of his motion was to deny that he committed any assault and claimed that Carmen Huron came to his house in anger and assaulted him, and that he did nothing more than to repel her attack; that he used no unnecessary force in doing so. The court heard the evidence and overruled the motion. The evidence heard upon the trial would control this court, if available, as the statement of facts presents the evidence which was actually heard. However, the statement of facts was filed ninety-two days after the motion for new trial was overruled and notice of appeal was given. The statute, article 760, C. C. P., forbids the consideration of the statement of facts under the circumstances. Appellant was allowed ninety days within which to prepare and file his statement of facts and bills of exception. The statute authorizes no greater allowance of time. See article 760, supra.

As the matter appears before this court, nothing is presented which would authorize a disturbance of the judgment. It is therefore affirmed.

Affirmed.  