
    CHISHOLM et al. v. STATE.
    (No. 11452.)
    Court of Criminal Appeals of Texas.
    Nov. 30, 1927.
    Rehearing Denied Jan. 11, 1928,
    On Motion for Rehearing.
    1. Criminal law <&=3’1092(16), 1099(9) — Trial judge cannot direct nunc pro tunc filing of statement of facts and bills of exception.
    Statement of facts and bills of exception cannot be dated back, even though done by agreement of parties, and with consent of trial judge, and trial judge has no authority to direct a nunc pro tunc filing of them.
    2. Criminal law <Sfcwl092(&), 1099(7) — Appellate court will not consider statement of facts and1 bills of exception filed after time allowed, in absence of diligence notwithstanding, extension of time by trial judge (Code Cr. Proc. 1925, art. 760; Rev. St. 1925, art. 2245).
    Where, after affirmance of judgment by Court of Appeals, in absence of statement of facts and bills of exception, trial judge, after expiration of time allowed by Code Cr. Proc. 1925, art. 760, extended time for 60 days, Court of Appeals, under Rev. St. 1925, art, 2245, will not consider such statement of facts and bills of exception, in absence of showing of excuse for lack of diligence.
    Appeal from Criminal District Court, Harris County; Whit Boyd, Judge.
    Tom Chisholm, Johnnie Chisholm, and John Dyball were convicted of assault with intent to murder, and they appeal.
    Affirmed.
    John M. Mathis, Sr., of Houston, for appellants.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The offense is assault with intent to murder; punishment fixed at confinement in the penitentiary for five years.

The indictment appears regular. The record is before us without bills of exceptions or statement of facts. No fundamental error having been perceived or pointed out, the judgment is affirmed. t

On'Motion for Rebearing.

HAWKINS, J.

Appellant’s motion for new trial was overruled on tbe 4th day of June, 1927. No order was then made granting extension of time for filing statement of facts and bills of exception beyond the 30 days allowed by law. Article 760, C. O. P. After the expiration of the 30 days, an order granting 60 days from adjournment of court was made. It is not necessary to pass upon the effect of this order by reason of it having been made after the 30 days allowed by law had expired. Court adjourned on the 30th day of July. The judgment having been heretofore affirmed, in the absence of a statement of facts and bills of exception, appellant now asks consideration of a statement of facts and bills which were not in fact filed in the court below until the 29th day of November. In the supplemental transcript now on file appears an order of the judge made on said 29th day of November, which recites:

“Whereas, it has been made known to me that the statement of facts and bills of exception have not been filed in the above entitled and numbered cause, and, whereas, good and sufficient reason having- been shown me for the failure to file them within the allowed time, it is therefore ordered that the bills of exception and statement of facts be filed, nunc pro tunc.”

Appellant apparently rests his request that we now consider the record upon the above order. He brings before this court no facts upon which he seeks to predicate excuse for lack of diligence in filing his record within the time limit allowed by law, and the record gives this court no information of the facts upon which the trial judge predicated the order referred to.

Article 2245, R. O. S., reads as follows:

“Whenever a statement of facts has been filed after the time prescribed by law, and the party tendering the filing of same shall show to the satisfaction of the appellate court that he has used due diligence to obtain the approval and signature of the judge thereto, and to file the same within the time prescribed by law for filing the same, and that his failure to file the same within said time is not due to the fault or laches of said party or his attorney, and that such failure was the result of causes beyond his control, the appellate court shall permit said statement of facts to remain as part of the rev, ord and consider the same in the hearing and adjudication of said cause the same as if said statement of facts had been filed in time.”

It has been held that statements of fact and bills of exception cannot be dated hack, even though done by agreement of the parties, and with the consent of the trial judge, and also that the trial judge has no authority to direct a nunc pro tunc filing of them. Wertheimer v. State, 75 Tex. Cr. R. 356, 171 S. W. 224; Gowan v. State, 73 Tex. Cr. R, 222, 164 S. W. 6; Campbell v. State, 65 Tex. Cr. R. 418, 144 S. W. 966; Sandifer v. State, 63 Tex. Cr. R. 361, 139 S. W. 1155; Shrewder v. State, 62 Tex. Cr. R. 403, 136 S. W. 461, 1200; Walker v. State, 50 Tex. Cr. R. 317, 96 S. W. 927; Henderson v. State, 50 Tex. Cr. R. 604, 101 S. W. 208; Flores v. State, 41 Tex. Cr. R. 166, 53 S. W. 346; Croomes v. State, 40 Tex. Cr. R. 672, 51 S. W. 924, 53 S. W. 882; Spillman v. State, 39 Tex. Cr. R. 379, 45 S. W. 492, 46 S. W. 233; Bryant v. State, 35 Tex. Cr. R. 394, 33 S. W. 978, 36 S. W. 79; Spencer v. State, 25 Tex. App. 585, 8 S. W. 648; Hinton y. State, 95 Tex. Cr. R. 3, 252 S. W. 525. In Vickers v. State, 90 Tex. Cr. R. 609, 236 S. W. 483, it was said:

“It is not within the province of this court to arbitrarily extend the time within which the law permits the statement of facts to be filed. Tlie law fixing the limit is binding alike upon the appellant, Ms counsel, and this court. The authority exists to prevent the accused who desires to appeal from suffering the consequences of misfortune which prevents his filing his papers in time, but the law demands of him diligence and gives this court no authority to relieve him from the consequences of his own laches.”

The facts upon which reliance is had to excuse an apparent lack of diligence must he produced before this court before it can determine the propriety of considering a record filed after the time allowed by law. The discretion vested in the appellate court under such circumstances cannot be exercised by the trial court. Clampitt v. State, 96 Tex. Cr. R. 148, 256 S. W. 272; George v. State, 25 Tex. App. 229, 8 S. W. 25; Stanford v. State, 42 Tex. Cr. R. 343, 60 S. W. 253; Carpenter v. State, 83 Tex. Cr. R. 87, 201 S. W. 996. Many other authorities will be found collated in cases to which reference is made.

Appellant’s motion for rehearing is overruled. 
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