
    ACUFF v. STATE.
    (No. 7788.)
    
    (Court of Criminal Appeals of Texas.
    June 13, 1923.
    Rehearing Denied, April 16, 1924.)
    1. Criminal law <&wkey;>1092(9)—Essentials to extension of time for filing bills of exception stated.
    Where an order extending the time for filing bills of .exception carries the filing date beyond the duration of the trial term, or the 30 days allowed by statute, an order granting further time must be made within the period of the first extension.
    2. Larceny <&wkey;40(2)—Ownership of pipe in theft prosecution held immaterial.
    It was immaterial, in a prosecution for the theft of 80 joints of pipe, as to the true ownership thereof, where the evidence authorized the finding that the person named in the indictment was in the possession thereof, and was the owner in contemplation of the theft statute.
    3. Larceny <&wkey;>55—Evidence held to support conviction.
    In a prosecution for the theft of 80 joints of pipe, evidence held to support conviction.
    On Motion for Rehearing.
    4. Criminal law <&wkey;!092(8)—Diligence held not shown in filing of bills of exception.
    Where, on the day the trial term adjourned, defendant was granted 60 days in which to file bills of exception, and -no application for an extension of that time was made until 3 weeks after the time originally granted had elapsed, and the bills of exception were not filed until nearly a month after the expiration of the original period, diligence in filing the bills of exception was not shown.
    <§^}For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Wichita County; P. A. Martin, Judge.
    B. W. Acuff was convicted of theft, and he appeals.
    Affirmed.
    T. F. Hunter and. E. E. Eisher, both of Wichita Falls, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
    
      
      Second rehearing denied 262 S. W. —.
    
   HAWKINS, J.

Appellant was changed with theft of 80 joints of pipe, valued at $600. His conviction resulted, with punishment assessed at three years in the penitentiary.

We find in the record many bills of exception, but none were filed within such time as entitle them to consideration. The trial term of court adjourned December 30, 1922. On that day motion for new trial was overruled, and 60 days after-adjournment granted in which to file bills of exception. The 60 days expired on February 28, 1923. An application for extension of time was filed March 20th, and on March 24th an order was made granting 30 days, in addition to the 60 already allowed. Where an order extending the time for filing bills of exception carries the filing date beyond the duration of the trial term or beyond the 30 days allowed by statute, an order granting further time must be made within the period of the first extension. This has been the uniform holding of this court. Griffin v. State, 59 Tex. Cr. R. 424, 128 S. W. 1134; Sanders v. State, 60 Tex. Cr. R. 34, 129 S. W. 605; Palmer v. State, 245 S. W. 238; Jones v. State (No. 7660, opinion April 18, 1923) 255 S.W. 419; Jones v. State (No. 7711, opinion May 30, 1923) 94 Tex. Cr. R. 471, 251 S. W. 1096.

-The pipe alleged to have been stolen was originally the property of the “New Tex Pipe Line Company.” Ben G. O’Neal was appointed receiver for said company, and under an order of court" sold the property of said company to one I. W. Keys, as trustee or agent, and at the direction of Keys the possession of. the property was placed in Will F. Davis, and Davis in turn placed W. E. Miller in charge of it on November 14, 1921. The theft is alleged to have occurred on November 17th, and the ownership of the property, in the first count in the indictment (being the only one submitted) was alleged to be in Miller. Some question is raised in the evidence as to the true owner of the stolen pipe, and also as to whether Miller was in actual care, control, and management thereof at the time of the theft. The first question is immaterial. The evidence authorized the finding that Miller was the party in possession, and the owner in contemplation of the theft statute. There is no question but that appellant took the pipe and was having it taken up and hauled away. He defended on the ground that he had purchased the pipe from one Scott or Scoot, and the state placed in evidence the purported bill of sale from Scott to appellant, and at his request the court instructed the jury that the state, having introduced it, was bound thereby, unless the statements therein had been shown to be untrue by the evidence. The jury were warranted in finding upon this issue in favor of the state.

The evidence being sufficient to support the judgment, it is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

We have carefully considered the affidavits appended to and made a part of the1 motion for rehearing on behalf of appellant, and regi-et that we cannot agree to the proposition that the failure to file the bills of exception within the time required by law does not result from" negligence of appellant. It is admitted that the bills of exception herein were placed in the hands of the assistant district attorney after the trial, but the date is not fixed. It is also shown that the district attorney’s office was called upon a number of times thereafter, and the bills of exception had not been O. K’d. It is also stated that the bills were finally obtained from the district attorney’s office about the time of the expiration of the 60 days granted appellant- in which to file bills of exception, and that same were turned over to the trial judge, who was engaged in a trial, and who informed counsel that he would examine said documents when he was through. No reason or excuse is stated why proper and appropriate extensions .of time were not then ashed and entered.

The 60 days allowed by the court for such filing, as stated in the original opinion, expired on February 28, 1923. Additional time might readily have been obtained by asking for an extension prior to February 28th. There appears nothing in the record justifying appellant in waiting until March 20th, more than 3 'weeks after the expiration of the 60-day period, to make and present to the court an application for such extension. The bills of exception were in fact filed on March 26th, practically a month after the expiration of the 60-day period granted by the court. Had application been made for a 30-day extension within the time originally fixed by the court, this -would have included the date on which the bills of exception were in fact filed. This court must give effect to establish rules and statutes. The bills of exception not having been filed within the time granted, and no application for an extension appearing in the record until 3 weeks after the expiration of the time originally granted, we are compelled to hold that diligence in filing such bills is not shown, and ■ to affirm the correctness of the original disposition made of the case.

The motion for rehearing will be overruled.  