
    BRACHER v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.
    On Motion for Rehearing, Dec. 10, 1913.)
    1. Criminal Law (§ 1099) — Statement of Facts — Submission to Tkial Judge — 1Time.
    Acts 32d Leg. c. 119, § 7, provides that a statement of facts in a felony case may be filed, at any time before the time for filing the trans-script in the appellate court expires, which, in counties where the term of court exceeds eight weeks, is 90 days after sentence. Held, that where, in such a county, accused was sentenced on February 24th and a statement of facts was not presented to the trial judge until August 30th following, it was too late.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    2. Criminal Law (§ 949) —New Trial — Amended Motion.
    An amended motion for a new trial could not be filed without leave of court after the denial of the original motion; defendant’s remedy being by an application to the court to set aside the order overruling the original motion and to grant the motion as amended.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2337, 2339-2344; Dec. Dig. § 949.]
    On Motion for Rehearing.
    3. Criminal Law (§ 1099) — Statement of ■ Facts — Failure to Obtain — Negligence • of Attorney.
    Where accused employed his own attorney to defend him, the negligence of such attorney in failing to present a statement of facts to the judge for approval in time will be imputed to accused.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    4. Robbery (§ 24) — Alibi—Evidence.
    In a prosecution for robbery, evidence held to justify a conviction, notwithstanding defendant’s evidence of alibi.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. §§ 32-36; Dec. Dig. § 24.]
    5. Criminal Law (§ 958) — New Trial — Newly Discovered Evidence — Motion — Requisites — Affidavit.
    An application for a new trial for newly discovered evidence must be supported by affidavit.
    [Ed. Note. — For other. cases, see Criminal Law, Cent. Dig. §§ 2396-2403; Dec. Dig. § 958.]
    6. Robbery (§ 20) — Indictment—Variance.
    Where an indictment for robbery alleged that C. was robbed of $10, a fact that the proof showed that he was robbed of $14 was not a variance.
    [Ed. Note. — For other cases, see Robbery, Cent. Dig. § 27; Dee. Dig. § 20.]
    7. Robbery (§ 17)— Indictment — Money Stolen — Character.
    In a prosecution for robbery, it is not necessary that the indictment allege the denomination and kind of money stolen from prosecutor.
    [Ed. Note. — For other eases, see Robbery, Cent. Dig. §§ 16-23, 26; Dec. Dig. § 17.]
    8. Criminal Law (§ 1053) — Appeal—Jury-Necessity of Exception.
    In the absence of an exception reserved to the formation and organization of the jury, an objection that it was composed wholly of “talesmen” is not ground for reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2661, 2665; Dec. Dig. § 1053.]
    Appeal from District Court, Wichita County ; P. A. Martin, Judge.
    J. E. Bracher was convicted of robbery, and he appeals.
    Affirmed.
    T. F. Hunter, of Wichita Falls, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of robbery, and his punishment assessed at five years’ confinement in the state penitentiary.

There are no bills of exceptions contained in the record. There is a purported statement of facts, but the judge trying the cause certifies that same was not presented to him until August' 30, 1913. This case was tried January 25, 1913, and sentence pronounced on February 24, 1913. The official stenographer’s act provides that time may be extended in which to file statements of facts and bills of exceptions, and further provides that a statement of facts in a felony case may be filed, whether time is granted by the trial judge or not, at any time before the time of filing of the transcript in the appellate court expires.. We have frequently had occasion to call attention to the fact that the time for filing transcripts in the appellate court expires in 90 days from the adjournment of the term of court, or, if the term extends more than 8 weeks, within 90 days from date of sentence. Section 7 of chapter 119, Acts of 32d Legislature; articles 929, 930, 931, and 934 of Code of Criminal Procedure; rule 2 of the Court of Civil Appeals, 142 S. W. x, and rule 1, p. xvii; Constitution, § 25, art. 5.

There is another matter disclosed by this record we would call attention to. The motion for a new trial was filed on January 27 and overruled on February 22, 1913. After said motion for new trial was overruled, appellant, without leave of the court, undertakes to file, two days after the motion for new trial had been overruled, an amended motion for á new trial, which the record does not disclose was ever called to the attention of this court. Under such circumstances, this court would not be authorized to consider the amended motion for new trial. If, after the motion for new trial has been overruled by the trial court, an appellant desires to file an amended motion for new trial, he should file a motion asking the trial court to set aside the order overruling the motion for new trial and grant him a new trial, and the record should disclose by an order duly entered that such action was taken, and that the trial court then ruled on the amended motion.

There being no statement of facts we can consider, no matter is presented we can review.

The judgment is affirmed.

On Motion for Rehearing.

The motion for rehearing, in this case undertakes to lay the blame for failure to secure a statement of facts on appellant’s counsel. Appellant employed his own attorney, and if this attorney was negligent this will be attributed to him. The term of court at which appellant was tried lasted more than eight weeks. The appellant was sentenced February 24, 1913. The statement of facts was not presented to the judge until August 30, 1913. It was through no fault of the prosecuting officers nor the district judge that this delay occurred; consequently; nothing stated in the affidavit of appellant filed would entitle him to have the statement of facts considered.

But if, we did consider it,, the witnesses for the state positively identify appellant as one of those who robbed A. B. Clayton. Mr. Clayton positively swears he is one of the two men. While appellant undertakes to prove an alibi by J. B. Ivie and his daughter, yet everything they say could be true and yet he be the person who robbed Clayton. She says that she left home about 7:15 to go to town, and as she looked back she saw appellant and Arisman (the man who is said to have aided in the robbery) coming along after her. Clayton says he is not positive about the time he met appellant, but it was about 7:15, and that he was robbed at about 7:30. There is no such discrepancy in the time and place of the robbery fixed as to render the testimony irreconcilable, and the court submitted the issue of alibi in the language frequently approved by this court. Hines v. State, 40 Tex. Cr. R. 26, 48 S. W. 171; Caldwell v. State, 28 Tex. App. 566, 14 S. W. 122; Harris v. State, 31 Tex. Cr. R. 416, 20 S. W. 916; Stevens v. State, 42 Tex. Cr. R. 175, 59 S. W. 545.

The alleged newly discovered evidence is supported by the affidavit of no person, and no reason stated why such affidavit is not attached, and this under such circumstances, presents no error. Love v. State, 3 Tex. App. 501; Cotton v. State, 4 Tex. 260; Evans v. State, 6 Tex. App. 513.

If there was any variance in the “proof ánd the allegations contained in the indictment,” no exception was reserved to the introduction of the testimony. But no such variance occurs. The indictment alleges that Mr. Clayton was robbed of $10. Proof that he was robbed of more than $10 — $14—would be no variance.

Neither was it necessary for the indictment to allege denomination and kind of money.

If the jury was composed wholly of “talesmen” as alleged in the motion for a new trial, in the absence of any exception being reserved to the formation and organization of the jury, such fact would present no ground for reversal of the case. So, if we considered the statement of facts and every ground stated in appellant’s amended motion for a new trial, no error would be presented.

Motion for rehearing overruled.  