
    Gene Kennison v. The State.
    No. 18322.
    Delivered June 10, 1936.
    Rehearing Denied October 14, 1936.
    The opinion states the case.
    
      L. H. Welch and Floyd Jones, both of Breckenridge, for appellant.
    
      Ben J. Dean, District Attorney, of Breckenridge, and Lloyd W. Davidson, State’s Attorney, of Austin, for the State.
   MORROW, Presiding Judge.

Theft of cattle is the offense; penalty assessed at confinement in the penitentiary for two years.

The State’s Attorney before this court objects to the consideration of the statement of facts and bills of exception for the reason that same were not filed within the time prescribed by law. The motion for new trial was overruled and notice of appeal given on June 27, 1935. Ninety days were allowed for the preparation and filing of the bills of exception and statement of facts, which time expired on September 25, 1935. The bills of exception and statement of facts found in the record were not filed until January 15, 1936. Under the circumstances, the bills of exception and statement of facts cannot be considered by this court. See Art. 760, C. C. P., and annotations in Vernon’s Ann. C. C. P. (1925), Vol. 3, 1935 Pocket Supplement, p. 34, note 36, and cases cited.

In the absence of the statement of facts and bills of exception, nothing is presented justifying reversal or requiring discussion.

The judgment is affirmed.

Affirmed.

ON MOTION FOE REHEARING.

LATTIMORE, Judge.

In his motion for rehearing appellant insists that we erred in refusing to consider the statement of facts and bills of exception because filed too late, the record showing that notice of appeal was given in the court below on June 27, 1935, and the statement of facts and bills of exception being filed in January, 1936, obviously too late. Accompanying appellant’s motion is the affidavit of his attorneys showing that the statement of facts and bills of exception were presented to the trial court on September 27, 1935. If we considered such affidavits as making a sufficient attack upon the correctness of the record, which we can not do in its present condition, — still said statement of facts and bills of exception would show to have been presented to the trial court for his approval two days after the expiration of the time allowed by law within which said documents should have been filed after their approval. Manifestly our general statement in the opinion that said documents were filed too late would be correct in any event.

The motion for rehearing will be overruled.

Overruled.  