
    HOLDEN v. STATE.
    (No. 8180.)
    (Court of Criminal Appeals of Texas.
    Nov. 5, 1924.
    Rehearing Denied Jan. 7, 1925.)
    1. Criminal law <&wkey;JI84 — Judgment and sentence not in conformity with indeterminate sentence law will be corrected and reformed.
    Where sentence is not in conformity with the judgment, and neither are in conformity with indeterminate sentence law, both will be corrected and reformed.
    2. Criminal law <g=ol092(9) — Extension of time in which to file bills of exception and statements of fact must date from final judgment.
    Trial court is without power to grant extension of 90 days in which to file bills of exception and statements of fact from date of adjournment of term of court, in View of Code Cr. Proc. 1911, art. 845, providing that extension snail date from final judgment.
    Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.
    Ray Holden was convicted of theft, and he appeals.
    Affirmed.
    Ove E. Overson, of Eloydada, E. A. Bills, of Eastland, and W. P. Sebastian, of Breckenridge, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Eastland county of theft, and his punishment fixed at four years in the penitentiary.

The judgment directs that appellant be confined in the state penitentiary for a period of not less than four nor more than four years. In some way the sentence that appears in this record sentences appellant to confinement in the penitentiary for a term of not less than five nor more than five years. The sentence as it appears is not in conformity with the judgment, and neither the sentence nor the judgment is in conformity with the expressed direction of the indeterminate sentence law of this state. Said judgment and sentence will be now here corrected and reformed so as that same shall adjudge and sentence appellant to confinement in the penitentiary for a period of time not less than two nor more than four years.

The trial term of the court below could by law ' extend for more than eight weeks, it being provided in the bill creating the court that it shall meet at stated times and continue in session until the business of the court is disposed of. As defining what should be done in regard to bills of exception and statements of fact in a court whose term may extend more than eight weeks, there appears in article 845, C. C. P., the following language:

“Provided, if the term of said court may, by law, continue more than eight weeks, said statement of facts and bills of exceptions shall be filed within thirty days after final judgment shall be rendered, unless the court shall, by order, entered of record in said cause, extend the time for filing such statement and bills of exceptions.”

How long can the court extend the time, and from what beginning point should extension be dated? The answer appears in many opinions of this court, following Knight v. State, 66 Tex. Cr. R. 335, 147 S. W. 268, which states that the court is without power to extend the time for filing such bills of exception and statements of fact beyond 90 days from the date of final judgment. In the case before us the sentence was dated May 10th, and the 90-day period, which marked the limit of the extension which could legally be allowed, expired August 8th following. All the bills of exception in this I record appear to have been filed August 27th. They were filed too late. The trial court was without power to grant an extension of 90 days from June 2d, the date of the adjournment of the term of court. We regret that we cannot consider the bills of exception, because same were not .filed in time.

There seems no exception to the court’s charge, and an examination of the fácts in evidence lead us to believe them ample to support the conclusion of guilt reached by the jury.

The judgment of the trial court will be affirmed.  