
    CROWELL v. STATE.
    (Court of Criminal Appeals of Texas.
    April 10, 1912.
    On Motion for Rehearing, May 22, 1912.)
    1. CRIMINAL Law (§§ 741, 742) — Province of Juey.
    It is the province of the jury in a criminal case to pass on the credibility of the witnesses and the weight of the testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1138, 1221, 1705, 1713, 1716, 1717, 1727, 1728, 1098, 1138, 1719-1721; Dec. Dig. §§ 741, 742.]
    2. Cbiminai, Law (§ 1092) — Bills of Exception — Filing—Time.
    Under Acts 31st Leg. (1st Ex. Sess.) c. 39, § 7, which required bills of exception' to be filed within 30 days after adjournment of the trial term, but that the time might for good cause be extended not exceeding 90 days from adjournment, a bill filed August 31, 1911, cannot be considered where the trial term adjourned April 21, 1911.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2919; Dec. Dig. § 1092.]
    3. Homicide (§ 308) — Instructions—Murder in the Second Degree.
    On a new trial after a conviction of murder in the second degree, it being unnecessary to submit murder in the first degree, it was proper to instruct that any person of sound memory and discretion who unlawfully kills with malice aforethought is guilty of murder; that murder is distinguishable from every other homicide by the absence of circumstances reducing the offense to negligent homicide, or manslaughter, or which excuse or justify the homicide; that the distinguishing characteristic of murder in the second degree is implied malice aforethought, but malice aforethought includes all those states of mind under which the killing takes place, without any cause, which will justify, excuse, or extenuate the homicide; that it is a condition -of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed, or words spoken; and that malice in its legal sense denotes a wrongful act done intentionally without just cause or excuse.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 642-647; Dec. Dig. § 308.]
    4. Criminal Law (§ 761) — Instructions Assuming Fact.
    In a murder trial, an instruction that accused pleaded an alibi, that, if the jury had reasonable doubt as to his presence at the time and place of the offense, he should be acquitted, and that he should be acquitted if there was reasonable doubt as to whether decedent’s death resulted from accident was not improper as assuming that an offense had been committed.
    [Ed. Note. — For other cases, see Criminal Law, ’Cent. Dig. §§ 1731, 1738, 1754-1764, 1771, 1853; Dec. Dig. § 761.]
    
      On Motion for Rehearing.
    5. Criminal Law (§ 1092) — Bills cm Exceptions — Filins—Tijub.
    Acts 31st Leg. (1st Ex. Sess.) c. 39, § 7, requires bills of exceptions to be filed within >30 clays after the adjournment of the trial term, except that for good cause shown the trial court may extend the time not exceeding '90 days; but the statute prohibits extension so as to delay filing of the record in the appellate court. Transcripts in civil cases must be filed within 90 days from adjournment, and Code Cr. Proc. 1895, art. 896, requires transcripts in criminal cases to be prepared in preference to civil cases. Held that courts are powerless to authorize filing of bills after expiration of the 90-day period.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 283L-2861, 2919; Dec. Dig. § 1092.]
    Appeal from District Court, Archer County; E. W. Nicholson, Special Judge.
    M. J. Crowell was convicted of an offense, and he appeals.
    Affirmed.
    L. H. Mathis, of Wichita Falls, R. E. Taylor and Allen & Allen, all of Henrietta, and W. E. Forgy, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other oases see same topic and seption NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
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   HARPER, J.

Appellant was indicted by the grand jury of Olay county, charged with murder. Upon a conviction being had • of murder in the second degree, an appeal was prosecuted to this court, and the judgment reversed. The opinion will be found in 56 Tex. Cr. R. beginning on page 480, 120 S. W. 897, and the evidence is there so fully stated we do not deem it necessary to restate it here.

Appellant again insists that the evidence is insufficient to support the verdict. We have carefully read the evidence, and under our law, it being incumbent on the jury to pass on the credibility of the witnesses and the weight to be given the testimony, and if the evidence of the state’s witnesses was believed by the jury, the circumstances proven are sufficient to support the verdict.

.The venue of the case was changed, and this trial was had in Archer county. There are no bills of exception in the record to admitting or rejecting testimony; the only hill in the record relating to the misconduct of the jury. The term of court at which appellant was tried adjourned on April 21, 1911, and the bill of exceptions presenting this matter was not filed until August 31, 1911, four months and ten days subsequent to the adjournment of the court. Under all the decisions of this court, we cannot consider this bill. In the case of Probest v. State, 60 Tex. Cr. R. 608, 133 S. W. 263, it was held that evidence introduced on matters arising on issues formed on a motion for a new trial must be filed during the term of court. This has been the rule in this court since the rendition of the opinion in Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116. But under no statute ever enacted could a bill of exceptions relating to any matter be filed four months after the adjournment of court for the term. By the terms of section 7 of chapter 39 of the Acts of the 31st Legislature (1st Ex. Sess.), a party was given 30 days after adjournment of court in which to file bills of exception to matters arising on the 'trial of the case, and in the act it was provided that for good cause shown the court might extend the time to not exceeding 90 days from adjournment of court, and, had the court undertaken to do so, it would not have had authority to extend the time 130 days. However, the record discloses the court did not extend the time beyond the 30 days allowed by law, and the bill of exceptions cannot be considered by us for any purpose.

The appellant on the former trial was adjudged guilty of murder in the second degree only, consequently it was unnecessary for the court to define or submit murder in the first degree. The court charged the jury: “I instruct you that our statute provides that any person of sound memory and discretion who shall unlawfully kill any reasonable creature in being within this state, with malice aforethought, shall be deemed guilty of murder, and murder is distinguishable from every other species of homicide by the absence of the circumstances which reduce the offense to negligent homicide or manslaughter, or which excuse or justify the homicide. The distinguishing characteristic of murder in the second degree is implied malice aforethought. Malice aforethought includes all those states of mind under which the killing of a person takes place without any cause which will in law justify, excuse, or extenuate the homicide. It is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken. Malice in its legal sense denotes a wrongful act done intentionally without just cause or excuse.” This charge has been frequently approved by this court as has also the court’s charge on circumstantial evidence, and neither of them' are subject to the criticisms contained in the motion for new trial.

The court further charged the jury:

“In this case the defendant has interposed the defense of what in legal phraseology is termed an ‘alibi’; that is, that the defendant was at said time at another and different place from that at which said offense is alleged to have been committed, and therefore was not, and could not have been, the person who committed said offense.
“Now if you have a reasonable doubt as to the presence of the defendant at the place and at the time where said offense is alleged to have been committed, you will find the defendant not guilty and so say by your verdict.
“Tour verdict must not be the result of lot or accident.
“If you find and believe from tbe evidence in this case that Mrs. Emma Crowell died as the result of an accident, or if you have a reasonable doubt as to whether or not her death was the result of an accident, then, in either event, you will acquit the defendant.”

This charge does not assume that an offense had been committed, but submits the issues made by the evidence fairly and fully. These are all the paragraphs of the court’s charge criticised. No special charges were requested, and the other grounds in the motion are not supported by any bills of exception.

The judgment is affirmed.

On Motion for Rehearing.

At a former day of this term this case was affirmed, and appellant has filed a motion for rehearing; the only ground assigned being that this court should consider the bill of exceptions alleging misconduct of the jury. While in the original transcript there were no orders extending the time in which to file bills of exceptions, attached to the motion for rehearing is a certificate of the clerk, certifying that the court on May 20, 1911, granted 30 days additional to the time granted in the order overruling the motion for new trial, and that on June 19th the court granted 30 days additional; the 90 days allowed expiring on July 19, 1911. The clerk further certifies that on July 19, 1911, the judge made an order extending the time 30 days from and after July 19th. July having 31 days, this order would expire on August 18, 1911. He also files an affidavit of the clerk saying that the bill of exceptions was filed August 31, 1911, and he believes that is the true date of filing said papers. , In the affidavit, however, he says that the express records show that an express package came to Archer City for him on the 19th day of August, 1911, but he is certain he did not sign for nor receive the package on that day. In fact, he says the signature on the books of the express company is not his signature. If we should consider the date the package arrived at Archer City as the date of filing, August 19, 1911, it will be seen it would have been filed on the 121st day after adjournment of court, and would lack one day of being within the time attempted to be allowed by the court. However, the court had no power or authority to grant that much time. The statute expressly states that the time shall not be extended so as to delay the filing of the record in the appellate court. By the Code' of Criminal Procedure it is made the duty of clerks to prepare transcripts in criminal cases in preference to civil cases (Code of Criminal Procedure, art. 896), and the statute (Sayles’ Civ. St. 1897, art. 1015) fixes the time in which a transcript can be filed as 90 days from perfecting appeal in civil cases, and article 895, Code Or. Proc., provides that the rules prescribed in civil cases shall govern in criminal eases. So in no-case could a bill of exceptions be filed in a civil case 90 days even after adjournment, but must be filed in sufficient time prior to that date to enable the clerk to make out the transcript to be forwarded and filed in the appellate court within 90-days from the day of adjournment. And, while the law contemplates and says that precedence shall be given to criminal cases over civil, yet, in construing the stenographer’s statute, we have gone as far as we thought the law could be construed to permit and have considered bills filed in the lower court at an$- time within 90 days from date of adjournment of court. But by no rule of construction can we hold the trial court can grant more time. For us to do so would be to override the law as passed by the Legislature, and this we have no more right to do than any other citizen of the state.

Appellant also files the affidavit of the court stenographer that he could not have transcribed the evidence heard on the motion for new trial before the adjournment of court. But court adjourned in April, and the bill of exceptions was not filed until in August following. This affidavit nor any evidence in the record brings the appellant within the rule that, where he has been deprived of a bill through no fault or negligence of his own, this court will consider same filed at a subsequent date. The law makes it the duty of appellant to prepare and file his bills of exceptions, and they are not in the same category with the statement of facts which the law makes it the duty of the stenographer to prepare. The bill not having been filed within the time permitted by law, nor within the time allowed by the court, we cannot consider same. To do so we would have to overrule all the decisions of this court since its organization, and act in violation of the statute law of the state.

Overruled.  