
    ROMERO v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1913.)
    1. Crimina! Daw (§ 1099) — Appeal—Statement or Facts — Time for Filing.
    Under Acts 32d Leg. 1911, c. 119, providing that the statement of facts may be filed at any time before the time for filing the transcript in the Court of Criminal Appeals, an accused person has 90 days in which to file his statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.*]
    2. Criminal Law (§ 1099) — Appeal—Statement or Facts — Allowance
    Where the court stenographer prepared a transcript of the proceedings .for accused, who was a pauper, before the expiration of the 90 days within which he was required by Acts 32d Leg. 1911, c. 119, to file his statement of facts, the failure of the stenographer to prepare it within the 30 days allowed by the court does not deprive accused of a statement so as to entitle the unapproved transcript to consideration on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    3. Criminal Law (§ 1064) — Appeal—Presentation of Grounds of Review Below.
    Where the judge absented himself during a prosecution for felony, and accused desired to present the question on appeal, the court’s action should be excepted to and presented for actual determination by the motion for new trial, and cannot be first raised by affidavits not filed until 80 days after adjournment, even though the judge’s absence was a ground of the motion for new trial, though by agreement with the court this matter was not urged for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dee. Dig. § 1064.]
    
      4. Criminal Law (§ 1097) — Statement oe Facts — Necessity.
    Without a statement of facts, the sufficiency of the evidence and the failure of the court to charge on various phases of the case cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2947; Dec. Dig. § 1097.]
    5. Criminal Law (§ 1064) — Appeal—Presentation oe Grounds oe Review in Court Below.
    Where the failure of the court to charge on circumstantial evidence was not called to its attention by the motion for new trial, the error cannot be reviewed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    Appeal from District Court, Reeves County ; S. J. Isaacks, Judge.
    Jose Romero was convicted of horse theft, and he appeals.
    Affirmed.
    Gibson & Wilson, of Pecos, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, J.

Appellant was convicted of horse theft, his punishment assessed at two years’ confinement in the penitentiary.

Overruling the motion for new trial on the 29th of May, the court adjourned on the 31st. The court entered an order granting 30 days’ time in which to file statement of facts. After the expiration of the 30 days, another order was entered granting 30 days’ additional time. The filing of the order was dated back so as to make it come within the time of the previous 30 days. Appellant, being unable to pay the stenographer, filed a pauper’s affidavit. The stenographer was ordered to make out the statement of facts in duplicate, which he did by questions and answers. This was filed in the trial court on the 5th of July, 30-odd days after adjournment of court.

Appellant claims he was deprived of a statement of facts by reason of these matters, and apparently bases this upon the idea that the second order for 30 days was not legal, and, the stenographer not having filed the statement of facts within the original first 30 days, it was illegal, and he has been thereby deprived of a statement of facts. We cannot concur with this idea. The act of 1911, p. 267, provides that the statement of facts may be prepared and filed at any time before time for filing the transcript in this court, and the decisions of this court construing this article have held that' appellant had 90 days within which to file statement of facts. It is unnecessary to cite these cases. The statement of facts transcribed by the stenographer shows to have been filed on the 5th of July, 1913, but neither agreed to by counsel nor approved by the judge. There still remained the difference between the 5th of July and the 90 days, which would have terminated on the 31st of August, in which appellant could have prepared a statement of facts had he used ordinary diligence. A transcript of the evidence made by the stenographer was filed with the papers in the clerk’s office, and accessible to defendant and his counsel. We therefore hold, under the circumstances, that he has not been deprived by the court or any of the officers of having his evidence brought properly before this court.

In the latter part of August affidavits were filed to the effect that the court during the trial absented himself during the argument before the jury for an hour or such matter, and was not in the courtroom. These affidavits narrate the circumstances and things that occurred during the absence of the judge. It is further alleged that this was one of the grounds of the motion for new trial; but, with some actual or tacit understanding with the court, this matter was not urged for new trial. This matter, filed as it was the latter part of August, comes too late. To this action of the court proper exceptions should have been taken and reserved during the term time, and filed within such time as is authorized under the law with reference to filing bills of exception. The affidavits were filed more than 80 days after adjournment of court. Coming in this way the question cannot be considered on appeal.

There are some matters presented in the motion for new trial as to the sufficiency of the evidence and failure of the court to charge certain phases of the law which are claimed to have been applicable to the facts. These cannot be considered in the absence of the evidence.

Another matter is urged in the brief, but we fail to find it in the motion for new trial; that is, that the court’s charge on circumstantial evidence is not sufficient. This matter was not called to the attention of the court in the motion for new trial, and therefore, under the prior decisions of this court, this would come too late, unless it was of that fundamental nature which authorized an illegal conviction.

As the record presents these matters, we are unable to review them; therefore the judgment is affirmed.  