
    PALMER v. STATE.
    (No. 6850.)
    (Court of Criminal Appeals of Texas.
    March 15, 1922.
    Rehearing Denied Nov. 29, 1922.)
    f. Criminal law &wkey;l092(9) — Extension of time to file bill of exceptions, made after expiration of previous extension, ineffectual.
    An order of extension of time to file bills of exceptions must, under Code Cr. Proc. 1911, art. 845, and the rules of the court, be made within the time theretofore granted, either by statute or order, and an extension made after the expii-ation of previous extensions is ineffectual.
    On Motion for Rehearing.
    2. Criminal law &wkey;>603(ll) — Application for continuance held not to disclose sufficient diligence.
    In a prosecution for swindling, an application for a continuance failed to show the necessary diligence, where the date of the return of subpoenas for absent witnesses did not appear, nor that subpoenas for other witnesses had ever been forwarded to the sheriffs in the respective counties in which they resided.
    3. False pretenses <&wkey;>32 — Averment that property obtained by swindling belonged to partner instead of firm will not vitiate indictment.
    An indictment in a prosecution for swindling, naming a member of a firm as the owner of the property obtained, held not vitiated because the property in fact belonged to the firm, in view of Code Cr. Proc. 1911, art. 457.
    4. False pretenses <&wkey;>43(2) — Evidence as to defrauded party’s ignorance of truth of representations admissible.
    In a prosecution for swindling by representations that defendant had money in the bank to cover a cheek given, it was not error to admit evidence that the person swindled did not know that the entries in defendant’s bank book shown to him were forged.
    5. Criminal law &wkey;> 1091 (II) — Bill of exceptions in question and answer form insufficient.
    A bill of exceptions which is but tran-sci-iption of the stenographer’s notes in question and answer foi-m is insufficient, under Rev. Civ. St. art. 2059.
    6. Criminal law <&wkey;982 — Ple<a for suspended sentence held to put accused’s character in issue.
    Where one convicted of swindling applied for a suspended sentence, such plea put the character of accused in issue.
    @=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.
    C. R. Palmer was convicted of swindling, and he appeals.
    Affirmed.
    P. C. Short and C. F. Greenwood, both of Dallas, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Dallas county of the offense of swindling, and his punishment fixed at three years in the penitentiary.

There appears in the record no statement of facts. The state, through our assistant attorney general, has moved to strike out appellant’s hills of exception upon the ground that same were filed too late.

It appears from an examination of the record that the trial term of the court below adjourned on October 1, 1921. Under tbe terms of article 845 of our Code of Criminal Procedure, the appellant was allowed 30 days in which to file his bills of exception. Within that 30 days and on October 14, 1921, the lower court made an order granting a 30-day extension from October 16th, within which to file bills of exception. The time so granted by the court below expired November 15th. No bills of exception were filed within said time. The record contains an order made by tbe trial court on November 30th granting to appellant on additional ten days in which to file bills of exception. On said last-mentioned date, according to the record before us, the trial court was without jurisdiction and had no power to enter any 'order of extension. In order to he within the rules and the requirements of the statute, any order of extension must be made within the time theretofore granted, either by'statute, or by some order of the court: The last legal extension of time having expired November 15th, the trial- court could not make further extension by an order of date November 30th. This matter ’is discussed and many authorities cited in Nothaf v. State, No. 6120 (Tex. Cr. App.) 239 S. W. 215, opinion handed down'on January 11, 1922. The bills of exception appear to have been filed on December 9th, and .being too late the motion of the state to strike same from the record will be granted.

The record is thus before us without statement of acts or bills of exception. The indictment appears to be in form sufficient to charge appellant with the offense of swindling by the giving and drawing of a check for more than $50 upon a bank in which he had no funds. The charge of the court below contains no error which we have observed, and the indictment and the charge being sufficient, and the record being without bills of exception and statement of facts, an affirmance is ordered.

On Motion for Rehearing.

MORROW, P. J.

The corrected record requires consideration of the case on its merits. Oonviction is for swindling; punishment fixed at confinement in the penitentiary for a period of three years.

The Slaughter-May field Company was a partnership composed of John T. Mayfield and J. B. Moses. The appellant arranged with the firm to furnish him two suits of clothes. One of them was delivered to him, and in payment therefor he issued a cheek for $252.50, payable to the firm mentioned, upon a bank in Breckenridge, Tex. The transaction took place with John T. Mayfield, who delivered the suit of clothes and received the check. Appellant represented that he had in the bank ample funds to his credit to assure the payment of the check. He exhibited to Mayfield a bank book and documents showing deposits of a large amount of money. The check was dishonored by the bank, though presented in the due course of business. The representations with reference to the deposits of large sums of money were shown to be false. The only credit was an item of $300 deposited in the bank a few days before the transaction in question, all of which, except the sum of $2.85, was withdrawn by the appellant before the check reached the bank.

The court overruled the first application for a continuance, made because of the absence of several named witnesses residing in different cities in the state. Subpoenas for two of them had been issued and returned not executed. The date of the return is not shown; nor is it made to appear that subpoenas for the other witnesses had ever been forwarded to the sheriffs of the respective counties in which the witnesses are alleged to have resided. The application failed to show the diligence which the law demands. Brown v. State, 32 Tex. Cr. R. 119, 22 S. W. 596; Vernon’s Tex. Crim. Stat.vol. 2, p. 311; White’s Anin. Penal Code, § 501; Owen v. State, No. 7054, 245 S. W. 704, recently decided.

The motion for new trial is supported by-affidavits from none of the alleged absent witnesses. Considering -the application in the light of the evidence developed upon the trial, we perceive no abuse of discretion of the trial judge in overruling the motion.

The ownership of the property was laid in John T. Mayfield. The evidence shows that it was in his possession, under his care, conti'ol and ■ management, and obtained through representations made to him. The fact that the property belonged to the firm of which Mayfield was a member did not vitiate the indictment nor bring about a variance in the proof. The law permitted the pleader to name Mayfield as the owner. Code of Crim. Proc. art 457; May v. State, 15 Tex. App. 437; Lockett v. State, 59 Tex. Cr. R. 531, 129 S. W. 627; Branch’s Ann. Tex. Penal Code, § 2434, p. 1317.

There was no error in the -admission of evidence that Mayfield did hot know that the entries in appellant’s bank book which were exhibited to him were forged. It was a part of the state’s case to prove that May-field believed the representations made by the appellant to induce the delivery of the property were true. It was incumbent upon the state to show that the check was issued without reason to believe that it would be paid. The status of appellant’s relations with the bank upon which the cheek was drawn was relevant and competent evidence upon this subject.

Bill of exceptions No. 9 is but a transcription of the stenographer’s notes in question and answer form. No reason is given for the failure to make it more succinct, as required by Revised Civil Stat., art. 2059. It comes in the form, which, under the repeated decisions of this court, characterizes it as insufficient to require consideration. McDaniel v. State, 90 Tex. Cr. R. 636, 237 S. W. 293; Watson v. State, 90 Tex. Cr. R. 576, 237 S. W. 298, and cases therein listed. Even if considered, the bill is without merit. It reveals that the appellant applied for a suspended sentence, and through the cross-examination of the witness Martin, elicited testimony in support of that plea. The plea put the character of the accused in issue. Overby v. State (Tex. Cr. App.) 242 S. W. 213; Martoni v. State, 74 Tex. Cr. R. 90, 167 S. W. 349.

An inquiry was made of a witness by the state’s counsel concerning the cases pending against the appellant. The objection to the inquiry having been sustained by the court, no error appears from the bill making complaint of it.

The motion for rehearing is overruleCL  