
    DEMARCO v. STATE.
    (No. 3320.)
    (Court of Criminal Appeals of Texas.
    Nov. 11, 1914.
    Rehearing Denied Dec. 9, 1914.
    Motion to Modify Opinion Denied Jan. 27, 1915.)
    1. Criminal Law <&wkey;1092 — Bills of Exception-Time of Piling.
    Where the term of court continued more than eight weeks, the time in which bills of exception could be filed must be calculated from the date on which sentence was passed; and where sentence was pronounced on June 6, 1914, the last day on which 'bills of exception could be filed was September 4th following, and when not filed till thereafter they must be stricken from the record on motion.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. <§^>1092.]
    2. Criminal Law <&wkey;1092 — Bills of Exception-Time of Filing — Pile Mark.
    The trial court has no right to order the clerk of court to place on bills of exception a different file mark from that which they should bear.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ .2803, 2829, 2834-2861, 2919; Dec. Dig. &wkey;1092J
    3. Criminal Law >&wkey;1092 — Bills of Exception — Time of Filing — Proving by Bystanders.
    Where the judge refused to act on bills of exception until his vacation ended, thereby postponing action until the expiration of the statutory time, aocused could prove his bills by bystanders.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. &wkey;1092.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Sam Demarco was convicted of assault to murder, and he appeals.
    Affirmed.
    Puckitt & Milliken, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of assault to murder, and his punishment assessed at four years’ confinement in the state penitentiary. No statement of facts accompanies the record; consequently some questions presented in the motion for new trial cannot be reviewed.

The term of court at which appellant was tried continued more than eight weeks; consequently the time in which bills of exception could be filed must be calculated from the date on which final sentence was passed. Sentence was pronounced in this case on June 6, 1914; consequently the last day on which bills of exception could be filed was September 4th. The bills that appear in the record were not filed until September 26, 1914 —22 days after the time in which they could have been filed under the law. Therefore the motion of the Assistant Attorney General to strike the bills of exception from the record must be sustained.

The record before us discloses that the trial judge undertook to have the clerk of the court file the bills of exception back; but this the clerk refused to do, and we wish to commend him for refusing to do so, and placing on the bills the date they really were filed. The trial court has no right to order the clerk to place on the bills a different file mark than that which they should bear. The laws are passed to govern each and every citizen of the state, and the trial judge who undertakes to have the clerk of his court to place on the bills of exception a file mark that does not speak the truth is violating the law of his state, and the clerk who has the moral courage to refuse to obey such instructions and abide by the law is entitled to commendation.

It may be that the trial judge felt that he needed a vacation, but he should perform the duties of his office first. The attorney for appellant may insist that, as the trial judge insisted on taking his vacation and would not act on his bills of exception until the vacation ended, the bills ought to be considered. But the law gives him a remedy— to prove up his bills by bystanders. However, should we consider his bills, each and every one of which we have read, they are not full and complete enough to present any error, in the absence of any statement of the evidence adduced on the trial. Neither they nor either of them present any error. Therefore the judgment is affirmed. 
      <§z^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     