
    THOMPSON v. STATE.
    (No. 4894.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.
    On Motion for Rehearing, March 29, 1918.)
    1. Criminal Law <&wkey; 1087(1) — Notice of Ap-peaiA-Necessity.
    Where the record shows no notice of appeal, the appeal will be dismissed.
    2. Criminal Law &wkey;1087(2) — Sufficiency of Record — Filing Exceptions Beyond Term Time.
    Where it appears from the record on appeal that statement of facts and bill of exceptions were filed beyond term time, an order of court for such filing should be shown.
    On Motion for Rehearing.
    3. Criminal Law <&wkey;1131(7) — Defects in Transcript — Cure.
    Defects in transcript of appeal may be cured and dismissed case reinstated, where defects were omissions of the clerk in failing to copy the necessary papers into the transcript.
    4. Criminal Law <&wkey;1066 — Appeal—Exceptions — New Trial.
    Although an order was entered authorizing the filing of statement of facts and bills of exception after court had adjourned, this would not apply to evidence taken on motion for new trial, exceptions to which must be filed during term time.
    Appeal from McLennan County Court; James P. Alexander, Judge.
    C. C. Thompson was convicted of aggravated assault, and he appeals.
    Affirmed.
    Holt & Shires and G. T. Shires, all of Waco, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of aggravated assault, and awarded nine months’ imprisonment in the county jail.

There is a statement of facts and a bill of exceptions in the record, but they were filed after the adjournment of court, and the record contains no order allowing such filing. The record is also without notice of appeal. On account of the want of this notice the appeal will be dismissed.

If it is sought to reinstate the appeal by showing notice of appeal was duly given, we call attention to the fact that it should be made to appear, if the record so shows, there was a proper order entered below authorizing the filing of the statement of facts and bill of exceptions beyond term time. It may be also noticed in this connection that the statement of facts adduced in support of appellant’s motion for new trial was not filed in term time.

As the record stands the appeal will be dismissed.

On Motion for Rehearing.

On the former day of the term the appeal herein was dismissed. The defects in the transcript have been cured, and it is now shown it was an omission of the clerk in failing to copy the necessary papers in the transcript. The case will therefore be reinstated.

It was intimated in the former opinion that, inasmuch as the testimony set out in the record was taken on motion for new trial, it would not be considered because filed subsequent to the adjournment of the court. There was an order entered, it seems, authorizing the filing of statement of facts and bills of exception after court had adjourned, but this would not apply to evidence taken on motion for new trial. This must be filed during term time. The decisions all seem to be in accord on this question; therefore the evidence as introduced in regard to the motion for new trial will not be considered. Without this there is nothing for the court to review, and the judgment will be affirmed.

PRENDERGAST,! X, absent.  