
    JOHNSON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 18, 1913.
    On Motion for Rehearing, Oct. 15, 1913.)
    1. Criminal Law (§§ 1092, 1099) — -Appeal-Bill op Exceptions — Time for Filing.
    Where the trial court adjourned on December 21, 1912, and the statement of facts and bill of exceptions in a criminal prosecution were not filed until May 8th following, they were too ¡ate and cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. §§ 1092, 1099.]
    On Motion for Rehearing.
    2. Criminal Law (§§ 1092, 1099) — Appeal— Bill of Exceptions and Statement of Facts — Effect of Failure to Procure.
    Where a convicted person used due diligence to obtain a bill of exceptions or statement of facts in time, but failed through no fault of his own, the judgment should be reversed.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. §§ 1092, 1099.]
    3. Criminal Law (§§ 1092, 1099)—Appeal-Bill of Exceptions and Statement op Facts—Eppect op Delay in Filins.
    Where one convicted of a crime did not file his bill of exceptions or statement of facts within the time required by statute, through no fault of his own or of his attorneys, and thereafter the judge received and certified the bill and statement to be correct, the Court of Criminal Appeals may consider them.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. |§ 2803, 2829, 2834-2861, 2866-2880, 2919; Dec. Dig. §§ 1092, 1099.]
    4. Criminal Law (§ 1133)—Appeal—Bill op Exceptions and Statement op Facts—Delay in Filing—Excuse.
    Where a motion for rehearing, filed after a judgment of conviction had been affirmed for want of a bill of exceptions and statement of facts in the record, charged that the delay was due to the fault of the trial judge, and that affidavits of the attorneys in support thereof would be filed, but no such affidavits were ever filed, there was no sufficient showing that the appellant was deprived of his bill of exceptions or statement of facts without fault on his part, and the rehearing will be denied.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2984; Dec. Dig. § 1133.]
    Appeal from Shelby County Court; Edgar W. Hooker, Judge.
    Sam Johnson was convicted of an aggravated assault, and he appeals.
    Judgment affirmed, and motion for rehearing overruled.
    Thomas O. Davis and J. P. Anderson, both of Center, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of an aggravated assault; his punishment being assessed at a fine of $25.

The county court adjourned on the 21st of December, 1912. The statement of facts and bills of exception were filed on the Sth of the following May. This was too late. These matters cannot be considered. With the evidence and bills of exception eliminated there is no reviewable question.

The judgment is affirmed.

On Motion for Rehearing.

The judgment herein was affirmed in June last just before the final adjournment of court. None of the questions suggested were revised because of the fact the statement of facts and bill of exceptions were filed too late to be considered, court having adjourned on 21st of December, 1912, and these papers were not filed until the 8th of the following May.

Appellant moves for a rehearing on the ground that the statement of facts and bills of exception were made up and prepared within the time agreed to by the county attorney, and by appellant’s counsel turned over to the county judge in ample time for his approval, but he failed to do this, but on the contrary held them. He says this delay is not chargeable to the appellant, and he should not therefore be deprived of the benefit of his statement of facts and his bills of exception. In this motion it is stated that the affidavit of the attorneys and the county attorney would later be filed with this motion and in support- of it, but this has not been done, and the motion is before us simply on the allegations set forth and above mentioned.

If the appellant had used such diligence as is required by law to obtain a statement of facts or bills of exception, and had been deprived through no fault of his of securing either or both, the judgment ought to be reversed in order that he may present his case to the court as it occurred.

There is another rule, also, that if the statement of facts or bills of exception are not filed within the time required by the statute, through no fault of appellant or his counsel, yet the court does approve and file them, and certifies them to be correct, this court may then consider the same, although not filed in time. This grows out of the provision of the statute which says appellant shall have these matters considered, although not filed in accordance with the statute, if this failure to so file arose through no fault of appellant or his counsel.

But neither rule has been complied with here. If appellant had filed his affidavit showing no want of diligence on his part, but that he was deprived of a statement of facts and bills of exception through no fault of his, but of the county judge, then he would present a question which would require serious thought, and, if he was without fault, then a reversal.

But the matter is not thus presented, therefore the motion for rehearing is overruled.  