
    SULLIVAN v. STATE.
    (Court of Criminal Appeals of Texas.
    April 26, 1911.
    On Motion for Rehearing, May 24, 1911.)
    1. Criminal Law (§ 1092) — Appeal—Bills of Exception — Filing.
    Where the term of court at which accused was tried adjourned December 10, 1910, and the statement of facts was not filed until January 6, 1911, and though defendant’s attorneys filed an affidavit that the statement was presented to the county judge within 20 days after adjournment of the court, the judge made a certificate that he had no recollection when the statement was delivered to him, the bills not having been approved by the court until January 6, 1911, and there being nothing to show when they were in fact presented to the judge before the day they were approved and filed, they could not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1092.]
    2. Criminal Law (§ 1090) — Appeal—Overruling Continuance.
    In the absence of a bill of exceptions, reserved to the overruling of an application for a continuance, the order cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2812; Dec. Dig. § 1090.]
    3. Criminal Law (§ 1090) — Appeal—Record —Refusal of Special Instructions.
    Assignments of error to the refusal of special instructions cannot 'be considered in the absence of a bill of exceptions.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2818; Dec. Dig. § 1090.]
    On Motion for Rehearing.
    4. Criminal Law (§ 1094) — Bills of Exceptions — Filing—Time.
    Unless diligence is shown, bills of exceptions not filed within the time prescribed will not be considered on appeal; it being the duty of appellant or his counsel to give personal attention to the matter.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2807, 3204; Dec. Dig. § 1094.]
    Appeal from Delta County Court; C. C. Dunagan, Judge.
    Jess 'Sullivan was convicted of slander, and he appeals.
    Affirmed.
    Love &-Calvin, 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
    
   HARPER, J.

In this case defendant was charged by information and complaint with the offense of slander. Upon a trial he was convicted, and has brought the case to this; court on appeal.

1. Appellant filed a motion to quash the information and complaint. The court did not err in overruling the motion. Humbard v. State, 21 Tex. App. 200, 17 S. W. 126; Dickson v. State, 34 Tex. Cr. R. 1, 28 S. W. 815, 30 S. W. 807, 53 Am. St. Rep. 694.

2. This case was tried at the November term of county court of Delta county, which adjourned on the loth day of December, 1910. The statement of facts was not filed until January 6, 1911. The attorneys now representing the defendant have filed their affidavit, and the affidavit of James Patterson that the statement of facts was presented to the county judge within 20 days of the day of adjournment of court. The certificate of the judge says he has no recollection when it was delivered to him. In cases appealed from county court, not more than 20 days can be allowed by law to file a statement of facts and bills of exception, yet where a defendant has exercised diligence to have the statement of facts filed within time, and it is through no negligence of defendant that it is not filed in time, this court will consider the statement of facts. However, the bills of exception were not approved by the court until the 6th day of January, 1911, and there is nothing In the record or the affidavits filed showing they were presented to the judge before the day they were approved and filed. Consequently the motion of the Assistant Attorney General to strike the bills of exception from the record is sustained, and we cannot consider them in passing on this case.

3. There is a motion for a continuance in the record, and the defendant assigns as error the failure of the court to grant the motion. Not having reserved a bill of exception to the action of the court, we cannot review the ruling of the court. To the motion there is no subpoena attached or other process. Trevino v. State, 38 Tex. Cr. R. 64, 41 S. W. 608.

4. We cannot pass on those assignments in the motion for new trial which are based on the refusal of the court to give special charges requested, because the bills of exception were not approved nor filed within the time allowed by law, and have been stricken from the record.

This being a conviction for a misdemean- or, an'd no exceptions being reserved to the charge, and no exceptions reserved to the failure of the court to give special instructions requested that we can consider, this judgment is affirmed, as the facts enctain the utterance of the words upon which the information is based.

The judgment is affirmed.

On Motion for Rehearing.

At a former day of this term this case was affirmed. Appellant has filed a motion for rehearing, asking that the judgment be set aside, and the bills of exception found in the record be considered, and accompanies said application with affidavits that the bills of exception were presented to the judge within the time provided, though not approved by him, nor filed until after the expiration of the time. In Riojas v. State, 36 Tex. Cr. R. 185, 36 S. W. 268, this court held: “Appellant presents to this court a bill of exceptions to the admission of certain evidence, signed and approved by the judge and filed after the expiration of the term. Accompanying this bill is the following explanation by the judge: ‘This bill of exceptions was handed me within the time prescribed by law, and during the term of court at which the case was tried, but was in some manner misplaced, and it is a fact that the exception to the admission of the testimony was reserved by the defendant, through his counsel, at the time of the admission of the same; and the clerlr of the court is ordered to file same as a part of the record.’ This bill cannot be considered. While it seemingly was neglect on the part of the judge not to approve and file the bill, it was the duty of counsel to follow this bill, and see that it was approved by the judge and filed by the clerk” — citing authorities.

In this case no such showing is made as in that case, for the judge says he does not know when the bills of exception were presented to him, and, when spoken to about it, he referred the inquiring person to appelant’s counsel. It appears to be the rule of this court that, unless diligence is shown, bills of exception not filed within the time fixed by law will not be considered, and that it is a duty of appellant or his counsel to give personal attention to the matter and not place dependence on some one else.

Motion for rehearing overruled.  