
    ROBERTS v. STATE.
    (Court of Criminal Appeals of Texas.
    March 29, 1911.
    Rehearing Denied April 26, 1911.)
    1. CeimiNal Law (§ 1112) — Appeal—-Proceedings on Appeal.
    The practice of requiring the Court of Criminal Appeals to consider affidavits to determine whether orders extending the time for filing the statement of facts or bills of exception is condemned.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1112.]
    2. Criminal Law (§ 1099) — Appeal— Statements op Facts — Extension op Time por Filing.
    Acts 1909 (1st E'x. Sess.) c. 89, § 7, grants to parties 80 days after adjournment to file statements of fact and bills of exception and permits the trial judge upon good cause to extend the time, but not so as to delay the filing beyond the time prescribed by law, and, if the term continue more than eight weeks, the statement or bill shall be filed within 80 days after final judgment, unless the court extends the time for filing the same. Code Or. Proc. art. 824, permits the statement of facts to be drawn up, certified, and placed in the record as in civil suits. Article 878 requires an appeal from a judgment in a felony case to be prosecuted immediately, and requires the clerk upon application to make out and forward without delay to the Court of Criminal Appeals a transcript. Held, that section 7 is mandatory, and, construed in view of the other statutes, does not authorize the trial court to grant extensions of time for filing a statement of facts beyond 90 days from the final judgment, which in criminal cases is the sentence, or from adjournment of the court.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1099.]
    3. Criminal Law (§ 1099) — Appeal—Statement op Facts — Extension op Time — Record.
    Where a statement of facts is filed after 30 days from final judgment or adjournment, the record must show that an extension of time for filing was properly granted by the trial court, and must also show such extension where the statement is filed after 60 days from final judgment or adjournment.
    [Ed. Note. — For other cases, see Criminal Law, Dee. Dig. § 1099.]
    4. Criminal Law (§ 1099) — Appeal—Statement op Facts — Failure to File.
    Unless appellant affirmatively shows that he was without fault in filing his statement of facts after the time authorized by law, the Court of Criminal Appeals will not consider such statement.
    [Ed. Note. — For other cases, see Criminal Law, Dee. Dig. § 1099.]
    5. Criminal Law (§ 1099) — Appeal—Statement op Facts — Time op
    Accused’s motion for a new trial was overruled on March 25, 1910, and notice of appeal then given. The court adjourned on April 2d, when the term ended, there being four terms, each beginning, respectively, on the first Mondays in January, April, July, and October. Without application, orders were entered on May 2d, May 30th, July 29th, July 27th, and August 26th, giving accused 30 days from those dates for filing a statement of facts, but none was filed, and sent up in the record which was filed in the Court of Criminal Appeals on December 2, 1910. No statement is claimed by accused -to have been made out until September 22d or 23d, and it was not delivered to the county attorney until about October 1st, and was never presented to the trial judge. Held, that accused was at fault in not having a statement of facts in the record; he not having presented a statement to opposing counsel or the trial judge within a reasonable time.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1099.]
    6. Criminal Law (§ 1094) — Appeal—Disposition — Appirmance — Insuppiciency op Record.
    Where the indictment, judgment, and sentence are regular in form and show accused guilty as charged, the judgment of conviction must be affirmed, in absence of a statement of facts or bills of exception.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2807, 3204; Dec. Dig. § 1094.]
    Appeal from Criminal District Court, Dallas County; Robt. B.' Seay, Judge.
    Charlie Roberts, alias Browney, was convicted of murder, and he appeals.
    Affirmed.
    Wiley & Baskett, 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, J.

The appellant was indicted, tried, and convicted for the murder of N. S. Board on May 30, 1909.

The indictment was returned July 3, 1909. The trial began March 7, 1910, and ended March 12, 1910. The motion for new trial was overruled on March 25th and notice of appeal then given. That term of the court continued until Saturday, April 2, 1910, on which date it adjourned. The law fixes four terms 'for that court, each term beginning, respectively, on the first Mondays in January, April, July, and October. The record shows, without any written application therefor, or necessity shown either in the orders or elsewhere, that on May 2d, May 30th, June 29th, July 27th, and August 26th an order was entered each time giving 30 days from those respective dates for the filing of statement of facts and bills of exception. No bill of' exceptions or statement of facts have been filed, and none are contained in the record or with it. The record was filed in this court December 22, 1910.

A contest has arisen in this court over the fact of whether or not the latter three orders extending the time were ever made by the judge or authorized to be made. Taking all of the affidavits, we are inclined to the opinion that they may sufficiently show that the entries of the respective orders were either made or authorized to be made on the judge’s docket by either Judge Seay, who was the judge of that court, or by Judge Sewell, who was elected by the bar to hold, and who did hold, part of the July term of said court. The affidavits of the parties differ as to some of the facts of what was done and said. In fact, in some respects they sharply contradict one another.

Recently it seems that this court has been frequently called upon to pass upon such character of affidavits. We want to say here, for the benefit of the bar and lower courts, that this court believes it should not be incumbered with such matters, nor called upon to consider and pass upon them, and, while we do not intend, and do not, in fact, reflect upon any of the parties in this case, we desire to say now that we condemn in no uncertain way this practice, and shall hesitate hereafter and perhaps refuse to consider such matters. There may be extreme circumstances and exceptions in such matters, but we want the bench and bar to know, and take this means of giving that information, that we hope the necessity will not arise for this court to be compelled hereafter to take up and consider such matters.

Section 7, p. 376, of the Act of May 1, 1909, on the subject of stenographers and statements of facts and bills of exceptions, has been several times construed already by this court and our Supreme Court — by this court in the cases of Griffin v. State, 128 S. W. 1134; Earles v. State, 128 S. W. 902; Sanders v. State, 129 S. W. 605, and other cases; by the Supreme Court in the case of Couturie v. Crespi, 131 S. W. 403. The effect of these decisions is that under this act of the Legislature the lower courts when within the time and when properly called upon for that purpose have the power to grant an extension or extensions of time for the filing of bills of exception and statements of facts in the lower court, provided the time of such extensions do not exceed 90 days from the adjournment of the court in ease the term cannot last under the law longer than eight weeks, or when it is authorized under the law to continue longer than eight weeks from the date of the final judgment. The final judgment in criminal cases is the sentence. The effect of these decisions further is that this statute is mandatory. In civil cases the section 7 of the act, above referred to, does not permit or authorize the lower court to grant a longer time than 90 days, as above explained, for the filing of statements of facts and bills of exception in the lower court. Article 824 of O. O. P. is as follows: “If a new trial be refused, a statement of facts may be drawn up and certified and placed in the record as in civil suits. Where the defendant has failed to move for a new trial he is, nevertheless, entitled, if he appeals, to have a statement of the facts certified and sent up with the record.” The Code of Criminal Procedure of our state contemplates that when an appeal is taken from a judgment in a felony case that the appeal shall be “prosecuted immediately.” And it also contemplates that the clerk of the lower courts shall make out the records and send them to this court within a reasonable time. Article 878, C. C. P. We therefore hold:

First. That the proper construction of these various statutes is that the lower courts have no power or authority to grant an extension br extensions of time beyond 90 days from the final judgment, or adjournment of court, as the case may be.

Second. That where statements of facts or bills of exception in the lower court are filed after 30 days from the final judgment, or adjournment for the term, as the ease may be, the record itself shall show that such an extension of time was properly granted by the order of the lower court; and where beyond 60 days a like extension of time shall be shown.

It was early held by this court that if, without fault of appellant or his counsel, the appellant has been deprived of his statement of facts, the judgment will be reversed, but it must be shown that the appellant and his counsel were diligent, and not at fault, before this ccWt will reverse any case on that account. Henderson v. State, 20 Tex. App. 304.

A long and uniform line of decisions has established that, where the appellant has not shown as an affirmative fact that he was without fault in filing his statement of facts and bills of exception after the time authorized by law, this court will neither reverse the case nor consider a statement of facts that is filed after the time allowed by law. Henderson v. State, 20 Tex. App. 304; Turner v. State, 22 Tex. App. 42, 2 S. W. 619; George v. State, 25 Tex. App. 229-242, 8 S. W. 25; Spencer v. State, 25 Tex. App. 585, 8 S. W. 648; Farris v. State, 26 Tex. App. 105-107, 9 S. W. 487; Suit v. State, 30 Tex. App. 319-320, 17 S. W. 458; Hess v. State, 30 Tex. App. 477-479, 17 S. W. 1099; Aistrop v. State, 31 Tex. Cr. R. 467, 20 S. W. 989; Bell v. State, 31 Tex. Cr. R. 521, 21 S. W. 259; Hutch v. State, 32 Tex. Cr. R. 184-186, 22 S. W. 594; Hutchins v. State, 33 Tex. Cr. R. 298, 299, 26 S. W. 399; Bryant v. State, 35 Tex. Cr. R. 394-400, 33 S. W. 978, 36 S. W. 79; Childers v. State, 36 Tex. Cr. R. 128, 35 S. W. 980; Davis v. State, 24 S. W. 651; Ranirez v. State, 40 S. W. 278; Seidel v. State, 41 S. W. 607; Davis v. State, 39 Tex. Cr. R. 681, 47 S. W. 978;. Dennis v. State, 41 Tex. Cr. R. 160, 53 S. W. 111; Bailey v. State, 41 Tex. Cr. R. 157, 53 S. W. 117.

The appellant in this case asks this court to reverse this ease because he has been deprived of a statement of facts without his fault. The affidavits in this ease show unquestionably that no statement of facts by the appellant or his attorney was ever claimed to have been made out until September 22 or 23, 1910. The county attorney and assistant county attorney by their affidavits show that it was not delivered to them by the appellant’s attorneys until the last of September or first of October, 1910. The affidavits of all the parties show in effect that no statement of facts by any of the parties was ever presented to the district judge for his approval or his action. The eases cited above show without necessity of our taking up each case and stating the facts therein that the appellant is not without fault in presenting a statement of facts to opposing counsel or to the judge within any reasonable time, and that-it is in effect exclusively thereby the fault of appellant that no statement of facts has been filed. We therefore hold that we cannot reverse this case on the ground claimed by the appellant.

The record before us shows that the appellant requested one charge which was refused. His motion for new trial sets up many grounds of complaint. None of them can be considered by this court, and will not be considered by this court without a statement of the facts. [6] The indictment, the judgment, and sentence are regular, and show that the defendant is guilty as charged, and the judgment will therefore be in all things affirmed.  