
    SAMPLES v. STATE.
    (No. 4304.)
    (Court of Criminal Appeals of Texas.
    Dec. 6, 1916.
    Rehearing Denied Dec. 27, 1916.)
    1. Criminal Law <§=>1099(6) — Appeal—Time
    03? APPEAL — STATEMENT 03? FACTS. Appellant has 90 days from the date of sentence in which to file statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2877; Dec. Dig. <§=>1099 (6).]
    2. Criminal Law <§=>1092(9) — Appeal—Time BOR APPEAL — BILL OP EXCEPTIONS.
    To authorize the filing of bills of exception, an extension order should be made before the expiration of 30 days from the date of sentence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2857-2860; Dec. Dig. <§=> 1092(9).]
    3. Criminal Law <§=>1038(1) — Appeal—Objections Below.
    Where the first objection to a charge of the court is in accused’s motion for new trial, it is not reviewable.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. <¿=1038(1).]
    4. Criminal Law <§=>1083 — New Trial — Loss op Trial Court’s Jurisdiction by Appeal.
    Where trial court has lost jurisdiction by sentence being pronounced, notice of appeal given and appeal recognizance entered into, motion for new trial cannot be considered; appellant’s remedy being to surrender himself, withdraw the notice of appeal, and ask an opening of the case.
    [Ed. Note. — For other cases, .see Criminal Law, Cent. Dig. § 2732; Dec. Dig. <§=> 1083.]
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge.
    F. S. Samples was convicted of receiving stolen property, knowing it to have been acquired by means of theft, and appeals.
    Affirmed.
    S. O. Jones, of Wichita Falls, for appellant. 0. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of receiving stolen property, knowing it to have been acquired by means of theft.

The court lasted over eight weeks; sentence was pronounced upon appellant on the 12th day of August; court adjourned on the 4th day of September. Under the law, as announced by the recent decisions, appellant is allowed 90 days from the date of sentence in which to file statement of facts. There was an order of the court entered, extending the time in which to file statement of facts and bills of exception, on'the 29th day of September, which was more than 30 days after final judgment. The order of the district court did not authorize the filing of bills of exception, which' occurred in the early part of November. In order to authorize the filing of bills of exception, the extension order should have been made before the expiration of 30 days from the date of the sentence. This eliminates the bills of exception. The statement of facts was'filed within the ,90 days, authorizing such filing, and shows that appellant received the property, knowing it to have been stolen. This is the state’s case. Appellant denies this, and introduced evidence showing that Miller, the accomplice from whom he received the property, left it with him, and finally gave some of the stolen property to him with the statement that he had won it in the oil field in a poker game. In other words, under appellant’s theory and evidence, Miller did not steal the property, but won it in a game and gave it to appellant. These issues were submitted to the jury, and the case went against appellant.

The couirt’s charge is defective in submitting the issue of accomplice testimony. No exception was taken to this, however, at the time, and the first notice was taken by appellant in his motion for a new trial and then in a very general way. He asked a charge, which the court refused, which would have corrected one of the errors in the court’s charge on that question. To this he reserved no exception, but brought it in his motion for new trial. It seems that under our recent statute and decisions construing it this would be too late. Those matters, therefore, cannot be revised.

There is another question which will be noticed. Appellant’s motion for new trial was overruled and sentence pronounced, notice of appeal given, and an appeal recognizance entered into. The recognizance was entered, into on the 19th day of August, 1916; the sentence was pronounced on August 12, 1916, 7 days prior to entering into recognizance, and the motion for new trial was overruled on the 12th of August. So appellant, under these dates and this condition of the record, had been sentenced and recognizance entered into and all these matters disposed of by the 19th of August. On the 23d of August he filed what he denominates his “extraordinary motion for new trial.” This contains an affidavit as to newly discovered evidence of the accomplice, Miller, substantially that his testimony on the main trial was false. On the trial of the ease he testified he did not tell appellant that he had won the property in a poker game on the oil field, but that he told appellant, at the time he let him have the property, he had stolen it, and appellant received it, knowing it to have been stolen. Miller’s affidavit, attached to this “extraordinary motion for new trial,” states his testimony was false, and that he did inform appellant at the time he turned over the property to appellant, and finally gave it to him he did win it in a poker game on the oil field, and that his testimony on the original trial was all false, and that he made up that story to convict appellant on agreement with the 'officers that he (Miller) was to be released, hut he did not believe they were going to release him, and therefore he concluded that, as defendant was innocent, he had better tell the truth about it, and made this affidavit in direct opposition to his testimony on the trial. If presented so this court could consider it, this would be a very serious question, and which, in the judgment of the writer, ought to entitle appellant to a new trial below or a reversal on appeal; hut he presents it in such shape from the record that it cannot be considered. The court on motion of 'the district attorney struck it out and would not hear or consider it, because appellant had been sentenced, and had entered into a recognizance several days before his “extraordinary motion for new trial” had- been filed, and had gone from the court in the custody or in charge of his bondsmen or cognizors. If appellant had desired to obtain jurisdiction of the trial court, it still being in session, he could have surrendered himself to the court, withdrawn his notice of appeal, and asked an opening of his case again on the showing made, but none of this occurred so far as this record is concerned. Under this view of the case the court had lost jurisdiction. The general proposition may be correctly stated that the trial court has jurisdiction of its cases during its term, yet where appellant has ousted that jurisdiction, or rather attached the jurisdiction of this court in the manner here indicated, in order to invoke the jurisdiction of the district court again, he must surrender himself, or, in other words, he must place himself in such condition as to reinstate the trial court’s authority to act. This is in accordance with the decisions of this court.

Finding the record in this condition, we are of opinion, while these questions are of a serious nature, yet appellant has not placed himself in position to invoke the revisory power to this court.

The judgment therefore will be affirmed.

HARPER, J., absent. 
      <£=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     