
    RUDOLPH v. STATE.
    (No. 10641.)
    Court of Criminal Appeals of Texas.
    Jan. 19, 1927.
    Rehearing Denied Oct. 19, 1927.
    1. Critninai law &wkey;l092(7), 1099(6) — Statement of facts and bills of exceptions filed over 90 days after notice of appeal cannot be considered (Code Cr. Proa 1925, art. 760, § 5).
    The Court of Criminal Appeals could not, because of Code Cr. Proe. 1925, art. 760, § 5, consider the statement of fact and bills of exceptions relative to embezzlement trial, where such statement and bills were filed more than 90 days after the notice of appeal was given in the case.
    On Appellant’s Motion for Rehearing.
    2. Embezzlement &wkey;44( I) — Evidence held sufficient to sustain conviction of embezzlement.'
    Evidence in defendant’s trial on charge of embezzlement held sufficient to sustain conviction.
    Commissioners’ Decision.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge. ,
    O. F. Rudolph was convicted of embezzlement, and he appeals.
    Affirmed.
    Lee J. Marks and Wm. Leo Sparks, both of Amarillo, for appellant.
    Sam D. Stinson, State’s Atty., and Robt.M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BETHEA, J.

The appellant was convicted in the district court of Potter county for the offense of embezzlement and his punishment assessed at confinement In the penitentiary for a term of two years.

The notice of appeal was given on the 4th day of June, 1926, and the statement of facts was filed on the 12th day of November, 1926, or more than 90 days after the notice of appeal was given. The bills of exceptions herein were filed December 4, 1926, more than 90 days after the notice of appeal was given in this ease. We have -repeatedly held that a statement of facts and bills of exceptions filed more than 90 days after the notice of appfeal is given cannot be considered by this court. In this ruling, we are following the plain terms of the statutes. Section 5, art. 760, 1925 Revision O. C. P.

In the absence of the statement of facts and bills of exceptions, there is no error manifested by this record, and the judgment is in all things affirmed.

PER GURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Appellant’s Motion for Rehearing.

CHRISTIAN, J.

This case was affirmed on the 19th day of January, 1927, for the reason that the statement of facts and bills of exception were filed more than 90 days after notice of appeal was given. Appellant has filed a motion for rehearing, accompanied by affidavits, in which he asserts that hfe used due diligence to have the statement of facts prepared and filed within the time provided by statute, and that the failure to prepare and file same within such time was not due to the fault of either appellant or his attorney, but was the result of causes beyond their control. We have concluded to consider the statement of facts and bills of exception.

Appellant was tried and convicted under an indictment charging him with embezzling, fraudulently misapplying, and converting to his own use, without the consent of the owner, $1,000 in money, belonging to J. A. Duckett, which said money had theretofore come into the possession of the appellant, and was under his care, by virtue of ,his employment as agent, bailee, and employee of the said J. A. Duckett. The state’s testimony shows that appellant was the attorney and agent of J. A. Duckett, and that in that capacity he received from one A. J. Beville $1,000 in money belonging to the said J. A. Duckett, and that said money was never paid to the said Duckett, although he made demand upon appellant for it. The state’s testimony further shows that appellant placed the money in the bank to his (appellant’s) credit, and that said money was thereafter withdrawn from the bank on checks executed by appellant payable to himself and to various other parties. The testimony of the state’s witness Beville shows that the money in question had been delivered to appellant to be paid to J. A. Duckett, and that there were no conditions accompanying the delivery of the money to appellant which would have prevented the immediate payment of the money to the said J. A. Duckett.

It was appellant’s theory, as disclosed by his testimony, that A. J. Beville delivered the money to him to be held in escrow pending compliance on the part of the said J. A. Duckett with the terms of a contract between him (J. A. Duckett) and the said A. J. Be-ville. Appellant testified that he still had the money in his possession, and that J. A. Duck-ett had never met the conditions which would have authorized appellant to pay over the money to him.

The jury resolved the issues against appellant, and the evidence is amply sufficient to support the verdict and judgment rendered thereon.

By bill of exception No. 1 appellant attacks the sufficiency of the indictment. The record fails to disclose that appellant filed a motion to quash the indictment. It ‘is shown by the bill of exception that appellant objected to the introduction of any testimony on the ground that the indictment was insufficient. An inspection of the first count of the indictment, under which appellant was tried and convicted, discloses that it embodies the statutory elements of embezzlement.

Appellant has brought forward several bills of exception. We have made a careful examination of these bills and find that they manifest no error.

From a careful examination of the record we have reached the conclusion that appellant was accorded a fair and impartial trial, and that the evidence is sufficient to sustain the judgment of conviction.

The motion for a rehearing is overruled.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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