
    Sam Demarco v. The State.
    No. 3320.
    Decided November 11, 1914.
    Eehearing denied December 9, 1914.
    X.—Assault to Murder—Bill of Exceptions—Practice on Appeal.
    Where the term of court continues for more than eight weeks, the time in which bills of exception can be filed must be calculated from the date on which final sentence was passed, and where the bills of exception were not filed within time, they can not he considered on appeal.
    3.—Same—Bills of Exception—Piling Back.
    The trial court had no right to order the clerk to place on the hills of ex-eeption a- different file mark than that which they should have, or in filing them back, and the clerk is to be commended for refusing to do so.
    .8,—Same—Bystander’s Bill—Statement of Facts.
    Where the appellant complained of the refusal of the trial judge in not _aeting on his bills of exception, he should have-gone farther and proved them up by a bystander’s bill; however, if considered, they present no reversible error, in the absence of a statement of facts.
    Appeal from the Criminal District Court of Dallas. Tried below before- the Hon. Bobt. B. Seay.
    Appeal from a conviction of assault to murder; penalty, four years ■imprisonment in the penitentiary.
    The opinion states the case.
    
      Puckett •& Milliken, for appellant.
    
      O. P, Lane, Assistant Attorney General, for the State.
    —On question of filing back: Riogas v. State, 36 Texas Crim. Rep., 182; Bryant v. State, 35 Texas Crim. Rep., 394; Baldwin v. State, 39 id., 245; Bonner v. State, 44 S. W. Rep., 172; Flores v. State, 53 S. W. Rep., 346.
   HARPER, Judge.

—Appellant was convicted of assault to murder, and his punishment assessed at four years confinement in the State penitentiary.

Ho statement of facts accompanies the record, consequently some questions presented in the motion for new trial can not be -reviewed.

The term of court at which appellant was tried continued more than eight weeks, consequently the time in which bills of exception could be filed must be calculated from the date on which final sentence was passed. Sentence was pronounced in this case on June 6, 1914, consequently the last day on which bills of exception could be filed was September 4th. The bills that appear in the record were not filed until September 26, 1914—twenty-two daj’s after the time in which they could have been filed under the law. Therefore, the motion of the Assistant Attorney General to strike the bills of exception from the record must be sustained.

The record before us discloses that the trial judge undertook to have the clerk of the co'urt file the bills of exception back, but this the clerk refused to do, and we wish to commend him for refusing to do so, and placing on the bills the date they really were filed. . The trial court has no right to order the clerk to place on the bills a different file mark than that which they should bear. The laws are passed- to govern each and every citizen of the State, and the trial judge who undertakes to have the clerk of his court to place on the bills of exception a file mark that does not speak the truth, is violating the law of his State, and the clerk who has the moral courage to refuse to obey such instructions and abide by the law is entitled to commendation. It may be that the trial judge felt that he needed a vacation, but he should perform the duties of his office first. The attorney for appellant may insist that as the trial judge insisted on taking his vacation and would not act on his bills of exception until his vacation ended, that the bills ought to be considered. But the law gives him a remedy—to prove up his bills by ' bystanders. However, should we consider his bills, each and every one of which we have read, they are not full and complete enough to present any error in the absence of any statement of the evidence adduced on the trial. Neither they, nor either of them, present any error, therefore the judgment is affirmed.

[Behearing denied December 9, 1914.—Beporter.]

'Affirmed.  