
    VAN DYKE v. STATE.
    (No. 3591.)
    (Court of Criminal Appeals of Texas.
    June 9, 1915.
    On Motion for Rehearing, Oct. 13, 1915.)
    1. Criminal Law <@=1092, 1099 — Appeal-Record — Time for Filing Statement and Bills of Exception.
    Where the statement of facts and bills of exception were filed after adjournment of court without an order for that purpose, such papers will not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 283<b-2861, 2866-2880, 2919; Dec. Dig. <@=1092, 1099.]
    On Motion for Rehearing.
    2. Criminal Law <@=1092, 1099 — Appeal and Error — Record — Time for Filing Statement — Bills of Exception — Statute.
    Code Or. Proc. 1911, art. 845, regulating .the filing of statement of facts and bills of exception when the appeal is taken from a judg-meat of conviction in a district or county court, does not authorize such papers to be filed after adjournment of court, whether there was an order entered to that effect or not.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. S§ 2803, 2829, 2834^-2861, 2866-2880, 2919; Dec. Dig. <@=>1092, 1099.]
    3. Criminal Law <S=>1092, 1099 — Appeal and Error — Record — Time por Filing Statement and Bills op Exception—Order oe Court.
    Where, on appeal, the clerk of the trial court sent up a certificate showing that the court entered upon its private docket, “Defendant’s motion having been this day overruled, and he having given notice of appeal, and his bond fixed at $700, defendant asked and was granted the time provided by law in which to file his statement of facts,” such order not carried forward into the minutes of the court, does not authorize the filing of statement of facts and bills of exceptions after adjournment of court.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. <©=>1092, 1099.]
    4. Criminal Law <©=>1121—Appeal—Ques-tions Reviewable—Record.
    Where, in a prosecution for violating the local option law, motion was made to quash the information and affidavit because the prohibition election in the county and the publication of the result had not been in conformity with statute, the court on appeal could not consider the question of the invalidity of the election in the absence of evidence on the point.
    [Ed. Note.—For other cases, see Criminal Daw, Cent. Dig. §§ 2938, 2939; Dec. Dig. <©=>1121.]
    Appeal from Scurry County Court; C. R. Buchanan, Judge.
    A. B. Van Dyke was convicted of violating the local option law, and he appeals.
    Affirmed.
    Smith & Spiller, of Snyder, and W. A. Anderson, of San Angelo, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was charged with violating the local option law. There are several interesting questions raised in the motion for new trial and bills of exception, but the record is in such condition that the statement of facts and bills of exception cannot be considered. All these papers were filed after adjournment of court, without an order having been entered for that purpose; at least the record is before us without an order authorizing the filing of statement of facts and bills of exception after adjournment of court. In this attitude of the record these papers cannot be considered, and the questions suggested in motion for new trial and bills of exception cannot be revised.

The judgment therefore will be affirmed.

On Motion for Rehearing.

Just before the adjournment of the term of court in June last the judgment herein was affirmed. The statement of facts and bills of exception were filed out of term time, without an order of the court entered granting time for such purpose. Appellant insists we were in error in not considering his statement of facts and bills of exception, referring us to the act of 1911, art. 845, of the Procedure as authority authorizing such papers to be filed whether there was an order entered or not. In view of the numerous decisions holding to the contrary, and that that law did not apply to county court cases, and only applied to the stenographer’s act, the statement of facts and bills of exception cannot be considered. It is deemed unnecessary to cite these cases.

The clerk sends a certificate showing that the court entered upon his private docket the following:

“Defendant’s motion having been this day overruled, and he having given notice of appeal, and his bond fixed at $700, defendant asked and was granted the time provided by law in which to file his statement of facts.”

This order was not carried forward into the minutes of the court, and therefore cannot be considered. The writer was under the impression that this court would be authorized to consider such an order and consider the statement of facts and bills of exception, but upon looking over the session acts fails to find that the Legislature enacted such a statute. We find that the acts of the last Legislature contain a statute to the effect that where notice of appeal has been given and not carried into the minutes, this may be shown either in vacation or term time, and the proper' order entered, and it shall be regarded as having occurred at the time the notice of appeal was given, but statement of facts and bills of exception were not included in that statute. We therefore cannot Consider the statement of facts and bills of exception.

Motion was made to quash the information and affidavit because prohibition of the sale of intoxicating liquors in the county of Scurry is not in effect, for the reason that the election wherein the question was submitted to the voters of said county and the publication of the result thereof was not in conformity with the statute governing such election, as is shown by the records of the minutes of the commissioners court of Scurry county. Without evidence of that fact before us this question cannot be considered. Where the validity of the election is attacked, the evidence must show such election to be invalid, and that the law was not in force. Whether this could be done on motion to quash or not it is not necessary here to decide, but inasmuch as this court must presume that the election was properly held in the absence of an attack on it, that question cannot under condition of this record, be considered on motion to quash. It might come up in the evidence, and if the evidence showed there was no valid election, of course the evidence would not be sufficient to support a conviction. There must be a law in force punishing the offense, else a conviction cannot occur. But as the matter is presented we cannot consider it.

The motion for rehearing, therefore, will be overruled. 
      ©=^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
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