
    HOUSETON v. STATE.
    (No. 7802.)
    (Court of Criminal Appeals of Texas
    June 13, 1923.
    Rehearing Denied Nov. 7, 1923.)
    1. Criminal law <&wkey;1097(5) — Exceptions to charges as on weight of and unauthorized by evidence, and misleading, not considered in absence of statement of facts.
    Exceptions to charges as on the weight of evidence, and unauthorized by the evidence, and misleading the jury as to the effect thereof, cannot be considered in the absence of a statement of facts.
    2. Criminal law <&wkey; 1059(2) — Defendant presenting no specific exceptions to, or request for amplification of, charge complained of, cannot complain on appeal.
    Defendant, presenting no exceptions sufficiently specific to call the trial court’s attention to his objection to a charge presenting the converse of a charge on provoking the difficulty, nor requesting a special charge amplifying it, cannot complain on appeal, in view of Vernon’s Ann. Code Or. Proc. 1916, art. 737a, 743.
    On Motion for Rehearing.
    3. Criminal law &wkey;>l099(7) — Showing held insufficient to show freedom from negligence in not filing statement of facts.
    Appellant’s showing that, no steps having been taken to perfect his appeal until about two weeks before expiration of the time for filing a statement of facts, he employed other attorneys, who were unable to find the court reporter and applied for an extension of time, which was denied, 'held insufficient to show him free from negligence, in the absence of any showin'g as to any effort 'by him or his attorneys to prepare and file such a statement.
    other cases see same topic and IvEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, San Saba County; J. H. McLean, Judge.
    A. G. Houseton was convicted of manslaughter, and he appeals.
    Affirmed.
    Harris Bell, of Austin, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for manslaughter with an assessed punishment of four years in the penitentiary.

No statement of facts appears in the record, and the only exceptions are to certain paragraphs of the charge. In many instances the exceptions are qualified by a statement from the learned trial judge that he altered his charge to conform to the suggestions of counsel for appellant.

We find an exception to subdivisions 5 and 6 of the eighth paragraph of the 'charge on the ground (a) that they are upon the weight of the evidence; (b) that the facts form no* basis authorizing the court to submit them; and (c) that they are misleading, for that the jury might conclude therefrom that in the opinion of the court the defendant by his own wrongful act produced a condition wherein it became necessary for his safety that he take the life of deceased. It needs only to set out the objections to make it apparent that this court cannot appraise such exceptions in the absence of knowledge of what facts were in evidence.

It is argued both orally and by brief filed that the court having charged on provoking the difficulty should also have charged the converse. Subdivision 6 of paragraph 8 does present the converse. No exception was taken to it further than as iádicatéd above. If appellant was dissatisfied with the language of it, he should have presented exceptions sufficiently specific to call the trial court’s attention to his complaint, or have requested a special charge amplifying it, if he thought it necessary to do so. He did neither, and cannot be heard to complain at this late hour. Articles 787a, 743, Vernon’s C. C. P. 1916; Rodgers v. State, 93 Tex. Cr. R. 1, 245 S. W. 697; Richardson v. State, 91 Tex. Cr. R. 318, 239 S. W. 218, 20 A. L. R. 1249; Littleton v. State, 91 Tex. Cr. R. 205, 239 S. W. 202; Jordan v. State, 91 Tex. Cr. R. 371, 238 S. W. 1113.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant asks us to set aside the judgment of affirmance and grant him a rehearing upon the proposition that he has been deprived of a statement of facts without fault or negligence on his part. We regret we cannot agree that the showing made by appellant frees him from any imputation of neglect. It is made to appear by statements in the motion that attorneys were employed to represent appellant in the trial court by friends of his; that after his conviction, and when his motion for new trial was overruled, appellant made a recognizance and went away to West Texas, depending upon the attorneys to perfect his appeal; that he came back about the 17th of February, 1923, and, finding that no steps had been taken to perfect said appeal, he employed other attorneys to represent him. The 99 days within which to file statement of facts lacked about 2 weeks of being terminated when said latter attorneys were employed. The motion for rehearing further shows that said attorneys were unable to find the court reporter who officiated upon the trial of appellant, because he had removed to Oklahoma, and that they prepared and presented to the trial judge an application for an extension of time. There is serious doubt in our minds as to whether the trial judge can legally extend the time for filing of statement of facts beyond the 90 days allowed by statute in ■which to prepare and file papers in áppeals in criminal cases in the Court of Criminal Appeals. Without discussing this, however, the learned trial judge refused the application to extend the time upon the ground that same contained no merit. Nothing appears in the record reflecting any effort on the part of appellant, his former or his later attorneys, to prepare and have filed a statement of facts by agreement of counsel and prepared by them.' While the law authorizes the preparation of statement of facts by the court reporter, this is not the only means, and a statement of facts prepared by the attorneys and approved by the court would receive the same consideration at the hands of this court as the one prepared by the official court reporter. At no very distant date all statements of facts were prepared by the attorneys.

. We regret that the showing made on behalf of appellant does not seem to us to justify the granting of a rehearing. If same were granted, appellant is not now in a position to better himself. The time for filing a statement of facts in the court below and in this court has long past. We cannot hold the appellant free from negligence in not making every effort in every way to comply with the law requiring a statement of the facts upon which the trial was had to accompany the record to this court.

The motion for rehearing will be overruled.  