
    WERTHEIMER v. STATE.
    (No. 3315.)
    (Court of Criminal Appeals of Texas.
    Nov. 25, 1914.)
    1. Cbiminai. Haw (§ 1099*) — Appeal—Statement op Facts — Reversal.
    Where accused, through no fault of his own, but through the refusal of the judge to consider the matter, because leaving on his vacation, is unable to file a statement of facts until after expiration of the 90 days allowed, the judgment should be reversed on appeal.
    [Ed. Note. — For other cases, see Criminal Haw, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.*]
    2. Criminal Haw (§ 1099*) — Appeal—Statement op Facts — Filing—Validity op Order.
    An order of the trial court that the statement of facts, filed in a criminal case on September 26th, be filed as of July 27th, being unauthorized the clerk properly refused to obey such order.
    [Ed. Note. — For other cases, see Criminal Haw, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.*]
    Appeal from Criminal District Court, Dallas County; R. B. Seay, Judge.
    S. Wertheimer was convicted of embezzlement, and appeals.
    Reversed and remanded.
    W. W. Nelms and A. S. Baskett, both of Dallas, for appellant. C. E. Dane, Asst. Atty. Hen., for the State.'
   DAVIDSON, J.

Appellant was convicted of embezzlement; his punishment being assessed at two years’ confinement in the penitentiary.

The statement of facts was filed in the trial court on September 26, 1914, “as of July 27, 1914, by order of the court.” The record shows that court adjourned on the 4th of July, entering an order allowing 30 days, following a previous order for 30 days, in which to file statement of facts and bills of exception. The previous order reached to July 6th. ■ This would have given appellant until August Cth in which to file his statement of facts and bills of exception. But, conceding he had 90 days from the adjournment of court on June 6th, this would have terminated on September 6th. It is shown without controversy that .the statement of facts and bills of exception reached the judge on July 27th. The statement of facts was approved by counsel for both sides before reaching the judge. The judge refused to consider the same because he was leaving the state on his vacation, and about the 28th or 29th of July he left Texas and went to the state of Colorado, returning from that state about the 6th or 7th of September, possibly the 5th. Before leaving the state the judge entered an order authorizing appellant to file a statement of facts by September 15th. This would have been about 10 days beyond the 90 days allowed by law. Without going into further detailed statement of the matter, the showing is made that, without fault of defendant, he failed to get a statement of facts filed until September 26th. To cover his absence the judge extended the time to file the facts of his own volition to September 15th. Returning about the 5th of September, which would have been .the end of the 90 days, the judge did not approve the facts until the 26th of September.

The court had no authority to order the statement of facts filed back, and the clerk was correct in not obeying the order. There is some question of diligence on the part of appellant with reference to the bills of exception. It seems these reached the judge in time, but had not been presented to the county attorney for his inspection and approval. There was no want of diligence on the part of appellant’s counsel to obtain a statement of facts, and it is shown the statement of facts was filed beyond the 90 days, which, under the authority of Fowler v. State, 158 S. W. 1117, could not be done. It is unnecessary to cite further authorities on this proposition. It follows, under all the authorities, that appellant is deprived of his statement of facts without his fault, and entitled to a reversal of the judgment for want of a statement of facts. See Branch’s Criminal Haw, § 41, for collation of authorities; Parker v. State, 145 S. W. 347.

Without the statement of facts, many questions cannot be reviewed, and are therefore not discussed.

The judgment is reversed, and the cause is remanded.  