
    STEWART v. STATE.
    (No. 11322.)
    Court of Criminal Appeals of Texas.
    Jan. 11, 1928.
    Rehearing Denied Feb. 15, 1928.
    1. Criminal law <⅝=»1092(9), 1099(6) — Order extending time for filing statement of facts and bills of exceptions for 60 days, entered more than 30 days after adjournment of county court, is unauthorized (Code Cr. Proc. 1925, art. 760, suhd. 5).
    Order of county court granting additional 60 days for filing statement of facts and bills of exceptions, if made after expiration of 30 days after adjournment of court, is unauthorized under Code Cr. Proc. 1925, art. 760, subd. 5, and precludes consideration of statement of facts or bills of exceptions filed pursuant thereto.
    On Motion for Rehearing.
    2. Criminal law <®=»I099(6) — Statement of facts, not filed within 90-day period after adjournment of term, held not entitled to consideration on appear (Code Cr. Proc. 1925, art. 760, subd. 5).
    Where term of county court was adjourned on June 4, and order was made on July 2d granting defendant 60-day extension in which to file a statement of facts and bills of exceptions, statement of facts, not filed until September 3d, was not within 90-day period, and therefore could not be considered on appeal, though order extending time was properly made, under Code Cr. Proc. 1925, art. 760, subd. 5.
    3. Criminal law 1097(4) — Witness’ testimony as to information concerning gambling at defendant’s place, objected to as hearsay, was not shown to be inadmissible in prosecution for establishing lottery, in absence of statement of facts.
    In prosecution for establishing lottery, bill of exceptions complaining of testimony of witness that he had information that gambling was going on in defendant’s place, objected to as hearsay, held not to show error, in absence of statement of facts, since there might have been other testimony with regard to such information.
    4. Criminal law <®=>I097(I) — One taking bill of exceptions should incorporate therein statement of facts.
    One who takes bill of exceptions should make as part of his bill a statement of the facts, so that the verification by the trial court may support the stated objection on appeal.
    5. Criminal law <§=3388 — Absence of defendant, accused' of establishing lottery, when gambling devices were tested, held not to render testimony as to their condition objectionable.
    Fact that alleged gambling devices or machines were tried out, and found to be in working order at time when defendant was not present, did not render testimony as to condition of* machines objectionable on ground that tests were made in defendant’s absence, in prosecution for establishing lottery. .
    6. Lotteries <©=33 — Coin used to operate gambling device need not be current money to bring device within class of prohibited lotteries.
    Coin used to operate gambling device was not required to be current money of United States in order to render device a lottery, falling within prohibition of statute relative to lot-' teries, and complaint and information were not required to allege that coin used was current money.
    Appeal from County Court at Law, No. 1, Tarrant County; David McGee, Judge.
    J. W. Stewart was convicted of unlawfully establishing a lottery, and he appeals.
    Affirmed.
    Sam S. Beene, of Fort Worth, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is unlawfully establishing a lottery; punishment -fixed at a fine of $150.

The trial took place at a term of the county court which adjourned on the 4th day of 'June, 1927. On September 3, 1927, there was filed in the county court a statement of facts, and, on September 1st, several bills of exceptions were filed: Under the law, the appellant was required to file the statement of facts and bills of exceptions within 30 days after the adjournment of court, unless before the expiration of that time the trial judge or court, for good cause shown, extended the time within which the statement of facts and .bills of exceptions might be filed. See article 760, subd. 5, O. C. P. 1925; Gribble v. State, 85 Tex. Cr. R. 52, 210 S. W. 215, 3 A. L. R. 1096. The 30 days allowed by statute expired on the 4th day of July. 'On the 27th of that month the judge entered an order granting 60 additional days within which the statement of facts and bills of exceptions might be filed. Such order was unauthorized. To be effective, the order should have been made before the expiration of July 4th. See Miller v. State, 98 Tex. Cr. R. 621, 267 S. W. 487; Mireles v. State, 98 Tex. Cr. R. 396, 266 S. W, 418. This court is not permitted to consider either the statement of facts or the bills of exceptions.

No fundamental error has been pointed out or discovered, and no ruling of the court has been presented for review.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant files his motion for rehearing, praying in connection therewith for a writ of certiorari to perfect the record, accompanying said motion by a certified copy of an order of the trial court of date July 2, 1927, granting him an extension of 60 days in which to file statement of facts and bills of exception. The order overruling appellant’s motion for new trial was of date June 4, 1927. Considering the order of the court as shown by the certified copy appended to appellant’s motion, as we would consider it if the writ was granted and the certified copy of said order should be sent back here by the clerk of the court below, we observe that our holding that the bills of exception were not filed in time was erroneous. We so held, relying upon the record before us, but giving effect to the order of extension on July 2, which was made within the 30 days allowed by statute after the overruling of the motion for new trial. This gave to appellant 90 days from June 4,1927, in while to file his bills of exception and statement of facts. This 90-day period expired on September 2,1927. The statement of facts was not filed until September 3d. Same was filed too late for our consideration. Craver v. State, 92 Tex. Cr. R. 430, 243 S. W. 1089; Gowan v. State, 73 Tex. Cr. R. 222, 164 S. W. 6; Council v. State, 78 Tex. Cr. R. 222, 180 S. W. 612; Woolridge v. State, 91 Tex. Cr. R. 430, 238 S. W. 926..

Appellant’s bills of exceptions were filed on September 1st, and were within the’ 90-day period granted by law and the extending order of the court now appearing in the record. We have carefully examined each of said bills. Bill of exceptions No. 1 complains that a witness testified that he had information there was gambling going on at appellant’s place. The objection to the testimony was' that it was hearsay. For aught we know, it might appear from the statement of facts, if same was properly before us, that some witness had testified in regard to this information.

Bill of exceptions No. 2 presents a number of objections to different things, and the court’s action upon all of them. The bill might be passed with the statement that same is multifarious, but we observe that the objections, while stated at length, appear unsupported by any facts in tbe bill by which we may determine whether the objections were well taken or not. One who takes a bill of exceptions should make as part of his bill a statement of the facts, so that verification of the bill by the trial court may bring before us this support of the stated objection. A bill of exceptions complaining that the alleged gambling devices or machines were tried out by people, and found to be in working order, at times when appellant was not present, would not seem open to the objection made that this was inadmissible because the tests were not made in the presence of the accused. We do not think the objection resting upon the proposition that the complaint and information were bad because they did not allege that the coin used in working the alleged gambling device was current money is meritorious. The device might be a lottery, and fall within every forbiddanee of the statute, whether the coin used to operate it was current money of the United States or any other character of coin.

A bill of exceptions complains of the refusal of an instructed verdict. We do not think same presents any error.

Further than to consider appellant’s bills of exception, which we conclude present no error, the motion for rehearing will be overruled. 
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