
    WILLIAMS v. STATE.
    (No. 10538.)
    Court of Criminal Appeals of Texas.
    Jan. 5, 1927.
    Rehearing Denied Nov. 16, 1927.
    1. Criminal law <&wkey;l099(6) —Statement of facts filed more than 90 days after giving notice of appeal cannot be considered.
    Where motion for new trial was overruled May 20 when defendant gave notice of appeal, ' statement of facts filed August 28, being more than 90 days after notice of appeal, cannot be considered because filed too late.
    On Motion for Rehearing.
    2. Criminal law <&wkey;l099(7) — Illness of defendant’s attorney after 72 days elapsed without securing filing of statement of facts held insufficient excuse for delayed filing.
    Where motion for new trial was overruled , May 20 and notice of appeal given, illness of defendant’s counsel about August 1 held) insufficient excuse for failure to have statement of facts filed, where 72 days elapsed without effort being made to file statement.
    Appeal from District Court, Montgomery County; J. L. Manry, Judge.
    Will Williams was convicted of transporting intoxicating liquor, and he appeals.
    Affirmed.
    M. E. Gates, of Huntsville, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction in district court of Montgomery county of transporting intoxicating liquor; punishment, 1 year in the penitentiary.

Appellant’s motion for new trial was overruled on May 20, 1926, at which time he gave notice of appeal. The statement of facts shows to have been filed in the court below on August 28, 1926. This was more than 90 days after the giving of notice of appeal. The statement of facts cannot be considered because filed too late.

There are ten bills of exception, each of which appears to have been qualified by the trial court in such manner as that same presents no error. .A discussion of any of said bills will be pretermitted. Many of them' present questions which could not be appraised by us in the absence of statement of facts. Each and all of the others are complaints rendered entirely ineffectual by the qualifications put thereon by the court and accepted by the appellant, Finding no error in any of the bills, the judgment will be

On Motion for Rehearing,

In his motion for rehearing appellant admits that the statement of facts was not filed in time, but attempts to make a showing of facts sufficient to excuse the failure to have such statement of facts filed. This contention in the motion is made to rest upon the sickness of appellant’s counsel. The motion for new trial herein appears to have been overruled on May 20, 1926. It is shown that appellant’s counsel became ill about the 1st of August thereafter. We thus have 72 days elapsing in which no efforts appears to have been made to secure the filing of the statement of facts. The showing of illness is that appellant’s attorney had influenza. It is shown further that appellant’s attorney directed his stenographer to send the papers to the district judge for his approval. A carbon copy of the letter written by the stenographer to the district judge, of date August 17, 1926, is attached to the motion for rehearing. Examining said carbon copy, we observe that same nowhere refers to the sending ofi any statement of facts, but mention is only made therein of the bills of exception. When the statement of facts reached the district judge is not shown. We regret that we are unable to agree with appellant as to the sufficiency of the showing made.

The motion for rehearing will be overruled.  