
    ROUNTOP v. STATE.
    No. 18619.
    Court of Criminal Appeals of Texas.
    Dec. 2, 1936.
    Rehearing Denied Jan. 27, 1937.
    R. H. Sigler, of Athens, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is theft of property over the value of $50; the punishment, confinement in the pententiary for two years.

The motion for new trial was overruled April 18, 1936, and notice of appeal given on the same date. The statement of facts was filed in the' trial court July 18, 1936, which was more than ninety days .from the date notice of appeal was given. This was too late and said statement of .facts is not entitled to consideration.

The only bill of exception that can be appraised in the absence of a statement of facts relates to appellant’s objection to the argument of the district attorney on the ground that it constituted a reference to the failure of appellant to testify. The bill recites that the district attorney referred to the fact that appellant had not offered any proof in support of his application for a suspended sentence. While it is certified in the bill that the appellant did not testify, there is nothing in said bill to show that no person other than appellant was in a position to give testimony in support of the application for a suspended sentence. Under the circumstances, the hill of exception is insufficient.

The judgment is affirmed.

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.

On Motion for Rehearing.

HAWKINS, Judge.

On motion for rehearing appellant questions the file mark on the statement of facts in the court below as reflecting the true date of such filing, it being his contention that it was lodged with the clerk within the exténsion period which had been allowed by the trial judge, and that the clerk inadvertently placed the wrong date of filing on it. Affidavits pro and con on the subject are before us. In view of the showing here made, the claim of a 'mistake in the filing date cannot be sustained.

The motion for rehearing is overruled.  