
    CARPENTER v. STATE.
    (No. 4763.)
    (Court of Criminal Appeals of Texas.
    Feb. 27, 1918.
    Rehearing Denied March 27, 1918.)
    1. Criminal Daw <§=H092(9) — Appeal—Extension op Time por Filins Bills op Exceptions.
    Under Code Cr. Proc. 1911, art. 845, relating to the time for preparing and filing statement of facts and bills of exception and the extension of such time, the limit to which extensions may be made is a total of 90 days after adjournment of the term.
    
      2. Criminal Law <§=>1092(8) — Appeal—1Time tor Filing Bills or Exceptions.
    The term at which an appellant in a. murder case was tried ended April 18th. On that day the court allowed 60 days for the filing of hills of exceptions and the statement of facts and on the day of the expiration thereof allowed 80 days additional which expired July 12th. On July 10th, which was two days prior to the expiration of 90 days from the adjournment of the term, the statement of facts and hills of exceptions were delivered to the trial judge, who filed the statement on July 16th and the bills of exceptions on July 21st, having granted an additional extension of 10 days from July 10th. The statement of facts contained 144 pages and the bills of exceptions 30 pages. Held that, no sufficient diligence having been shown, the statement of facts and bills of exceptions would not be considered, although where an appellant is diligent he will not be made to suffer in consequence of the fault of others.
    Appeal from District Court, Denton County; C. F. Spencer, Judge.
    Ernest Carpenter was convicted of murder, and he appeals.
    Affirmed.
    Sullivan & Hill and A. S. Baskett, all of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant’s conviction was for murder and his punishment assessed at seven years’ confinement-in the state penitentiary.

The state, through the assistant attorney general, has filed a motion to strike out the statement of facts and bills of exception. The term at which the trial took place ended April 18, 1917. The statement of facts was filed July 16th and the bills of exception July 21, 1917, both more than 90 days after the end of the term. The court on April 13th allowed 60 days, which expired June 12th, and on that day allowed 30 days additional, which expired July 12th. On July 10th another extension of 10 days was ordered, and before the expiration of this last-named 10 days the document was filed. Appellant, answering the motion, says that on July 10 th, which was two days prior to the expiration of 90 days from the adjournment of the term, the statement of facts agreed to, bearing the agreement of the attorneys, was delivered to the trial judge, and at the same time the bills of exception were delivered to him, and that the trial judge on July 16th, approved and filed the statement of facts without correction, and on the 21st the bills of exception with modification on two of them. only.

The power of the trial'court to extend the time in which bills of exception and statement of facts may be filed is controlled by article 845, C. C. P., and the limit to which the extension may be made is a total of 90 days after adjournment. This has frequently been decided. Roberts v. State, 62 Tex. Cr. R. 7, 136 S. W. 483.

When an appellant is diligent in his efforts to secure a statement of facts and bills of exceptions and to cause them to be filed in the time required by law, he will not be made to suffer the consequences of the faults of others. George v. State, 25 Tex. App. 229, 8 S. W. 25; Vernon’s C. C. P. p. 826, and cases cited. Appellant insists that this rule should inure to his benefit under the circumstances of this case. The correctness of this view depends upon the facts as disclosed by the record. Looking, to these it appears that when the 60-day order expired the stenographer’s transcribed report of the evidence was in the hands of the leading counsel for appellant. This affirmatively appears in the application for an additional extension filed by appellant June 10th.

The statement of facts, containing 144 pages of typewritten matter, and the bills of exceptions, containing about 30 pages, were placed in the hands of the district judge 30 days after this application was made, being 28 days after the order for an additional ex-, tension of 30 days was made on June 12th. At the time they were placed in the hands of the judge there remained 2 days within which they could be filed under the law. Appellant insists that it was possible within these 2 days for the trial judge to have examined, approved, and filed the papers, and that it follows therefrom that’ appellant is not chargeable with the' fault; and in this connection says that the 10 days further extension of time by the judge on July 10th was for the convenience of the court, and that this appears from the order. We do not understand the record to be susceptible to this construction. It appears therefrom that on July 10th appellant made an application for a further extension of 10 days, and that thereafter the court entered an order in the following terms:

“On this the 10th day of July, A. D. 1917, came on to be considered the application of Ernest Carpenter to extend the time for filing statements of fact and bills of exception in said cause, and said application having been considered and good cause found for such extension, and it appearing to the court that an appeal has been taken from the judgment rendered therein and that the statement of facts and bills of exceptions because they are so voluminous cannot be filed within the time heretofore granted by this court for such purpose, it is therefore ordered by the court that the said Ernest Carpenter shall have 10 days from the 11th day of July, 1917, in which to prepare, have filed, and approved statements of fact and bills of exception in this cause.”

The exception to the rule' requiring the disregard of bills of exceptions and statement of facts filed after the time permitted by law is predicated upon the showing to this court of the absence -of laches on the part of appellant. This is the view expressed by this court in an opinion by Judge Hurt in George v. State, 25 Tex. App. 242, 8 S. W. 26, from which we quote as follows:

“When a statement of facts is filed after these times, and the party tendering or filing the same shall, to the satisfaction of this court, show that he has used due diligence to obtain the approval and signature of the judge thereto, and to file the same within the time prescribed, to wit, in term time, or within 10 days after adjournment, and that his failure to file the same in said time is not due to the fault or laches of said party or his attorney, and that such failure was the result of causes beyond his control.”

This rule has been rededlared and followed in a number of cases listed in Rose’s Notes on Texas Reports, vol. 5, p. 674. In many of these cases the character of diligence which must be shown is discussed by this court. Illustrating these views we take the following quotation from Riojas v State, 36 Tex. Cr. R. 185, 36 S. W. 268:

“Appellant presents to this court a bill of exceptions to the admission of certain evidence, signed and approved by the judge and filed after the expiration of the term. Accompanying the bill is the following explanation by the judge: ‘This bill of exceptions was handed me within the time prescribed by law, and during the term of the court at which the case was tried, but was in some manner misplaced, and it is a fact that the exception to the admission of the testimony was reserved by the defendant, through his counsel, at the time of the admission of the same; and the clerk of the district court of Atascosa county is here now ordered to file the same as part of the record in this case, and transcribe same, making a certified copy of same, and all indorsements thereon, and forward same to Austin as a part of the, transcript in said cause.’ This bill cannot be considered. While it seemingly was neglect on the part of the judge not to approve and file the bill of exceptions, it was the duty-of'counsel to follow up his bill, and see that it was approved by the judge during the term, and filed with the clerk. This is statutory. See George v. State, 25 Tex. App. 229 [8 S. W. 25]; Exon v. State, 33 Tex. Cr. R. 461 [26 S. W. 1088].”

This interpretation of the rule has been approved in numerous instances, notably Stanford v. State, 42 Tex. Cr. R. 345, 60 S. W. 253; Pollard v. State, 45 Tex. Cr. R. 124, 73 S. W. 953; Sullivan v. State, 62 Tex. Cr. R. 412, 137 S. W. 700. It is apparent from the authorities cited that the privilege of this court to consider a bill of exceptions or statement of facts filed after the time is not to be arbitrarily exercised, but to be brought into operation only in eases where proof is made satisfactory to this court, that the delay was not contributed to by the laches of the appellant. This has not been done in the record before us, and without violence to the practice long adhered to and often declared, we cannot, in the present instance, overrule the state’s motion to disregard the documents filed after the time authorized by law.

In this state of the record the judgment of the lower court is affirmed.

PRENEERGAST, J„ absent. 
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