
    TRIGGS v. STATE.
    (No. 10082.)
    (Court of Criminal Appeals of Texas.
    April 28, 1926.
    Rehearing Withdrawn Jan. 5, 1927.)
    Criminal law &wkey;>l092(7), 1099(6) — Statement of facts and bili of exceptions, filed over 90 days after notice of appeal, cannot be considered (Code Cr. Proc. 1925, art. 760, subds. 4, 5).
    Under Code Cr. Proc. 1925, art. 760, subds. 4, 5, statement of facts and bill of exceptions, filed more than 90 days after notice of appeal, cannot be considered.
    Commissioners’ Decision.
    Appeal from District Court, Brazos County ; W. C. Davis, Judge.
    Joe Triggs was convicted of unlawfully possessing intoxicating liquors, and he appeals.
    Affirmed.
    Damar Bethea, of Bryan, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt M. Lyles, Asst. State’s Atty., of uroesbeck, for the State.
   BAKER, J.

The appellant was convicted in the district court of Brazos county of unlawfully possessing intoxicating liquors, and his punishment assessed at one year in the penitentiary.

The record discloses that the judgment of conviction herein was dated October 12, 1925, and the motion for new trial was overruled and notice of appeal given on October 19, 1925, at which time the court granted appellant 90 days from and after the adjournment of court within which to prepare and file his statement of facts and hills of exception. The record further discloses that appellant’s only bill of exceptions was filed January 23, 1926, and the statement of facts was filed January 26, 1926; both the statement of facts and bill of exceptions being filed more than 90 days after the date of the order overruling appellant’s motion for a new trial and after notice of appeal had been given, but within 90 days after the adjournment of that term of court. The attorneys for the state move to strike out the bill of exceptions and statement of facts because same were filed more than 90 days after the date of the order overruling the motion for new trial and notice of appeal; the state’s contention being based upon subdivisions 4 and 5 of article 760, 1925 Code of Criminal Procedure. Subdivisions 4 and 5 of article 760, supra, specifically state that appellant only has 90 days from and after giving notice of appeal within which to prepare and, file his statement of facts and buis of exception. The new .Code went into effect on September 1, 1925, and was in force and effect prior to the date of the trial hereof. It is therefore manifest that, said statement of facts and bill of exceptions being filed more than 90 days after notice of appeal, this court is without authority of law to consider same, and the motion of the attorneys for the state will have to be sustained. Bailey v. State (No. 10078) 104 Tex. Cr. R. 150, 282 S. W. 804, opinion delivered April 21, 1926.

With the statement of facts and bill of exceptions eliminated and no error being shown in the record, the judgment of the trial court is in all things ordered affirmed.

PER CURIAM. The foregoing opinion by the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals, and approved by the court. '

On Motion for Rehearing.

MORROW, P. J.

Since the filing of his motion for rehearing, appellant has filed, a written application, duly verified, requesting the withdrawal of said motion. The application is granted, and it is ordered that mandate issue upon the original hearing in which the judgment of the trial court was affirmed. 
      (&wkey;Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     