
    Leo Welch v. The State.
    No. 19788.
    Delivered May 25, 1938.
    
      The opinion states the case.
    
      Robert P. Brown, of San Angelo, for appellant.
    
      Lloyd W. Davidson, State’s Attorney, of Austin, for the State.
   Morrow, Presiding Judge.

Theft of chickens is the offense; penalty assessed at confinement in the county jail for 100 days.

The appellant’s motion for new trial was overruled and notice of appeal given on September 24, 1937. On December 23d following, the appellant filed an affidavit stating his inability to pay for a statement of facts or to give security therefor. According to the written statement of the district judge, when the affidavit of the appellant was presented to him on the date mentioned, ninety days had elapsed since the date of the overruling of the motion for new trial and the giving of the notice of appeal. Under the circumstances, we think the appellant failed to use the diligence required by law in filing his request for a copy of the statement of facts. See Tex. Jur., Vol. 4, p. 418, Sec. 286.

In the absence of the evidence adduced upon the trial, this Court will be unable to appraise the merits of the bills of exception found in the transcript. See Vernon’s Ann. Texas C. C. P., Vol. 3, p. 98, Sec. 17; also 1937 Pocket Part, p. 36, Note 17.

No error having been perceived which would authorize a reversal, the judgment of the trial court is affirmed.  