
    LATTIMORE v. STATE.
    (No. 11461.)
    Court of Criminal Appeals of Texas.
    March 28, 1928.
    1. Criminal law <⅝=>4092(9), 1099(6) — Order attempting to grant additional time after expiration of former extensions to file statement of facts and bill of exceptions held noneffective.
    Order attempting to grant 10. days’ additional time within which to file statement of facts and bill of exceptions, made after expira-ation of former extensions, held not effective.
    2. Criminal law <⅞=»1092(7), 1099(6) — Where bill of exceptions and statement of facts were filed 20 days after expiration of last extension, but within 90 days from notice of appeal, statement only should be considered (Code Cr. Proc. art. 760, subd. 5).
    Where statement of facts and bill of exceptions were filed in lower court on 27th' of August, motion for new trial having been overruled on 18th of June, and last extension to file statement of facts and bill of exceptions having expired on 7th of August, held that bill of exceptions should be disregarded, but statement of facts could be considered under Code Cr. Proc. art. 760, subd. 5, providing statement of facts in felony case filed within 90 days from date of notice of appeal is given shall be considered.
    3. Larceny <@=»65 — Evidence held insufficient to sustain conviction of theft of property of value over $50.
    In prosecution for theft of property over value of $50, evidence held insufficient to sustain conviction.
    
      Appeal from Criminal District Court, Dallas County; Grover Adams, Judge.
    Robert Lattimore was convicted of tbeft of property over the value of $50, and he appeals.
    Reversed and remanded.
    G. W. Lindsey, of Dallas, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for theft of property over the value of $50; punishment being two years in the penitentiary.

The motion for new trial was overruled on the 18th day of June, and 80 days granted in which to file statement of facts and bills of exception, which time expired on the 18th day of July. Within the 30-day period, on, to wit, July 15th, 20 days’ additional time was granted. The last extension expired on August 7th. On the 17th day of August an order was made which attempted to grant 10 days’ additional time. This last order was noneffective, having been made after expiration of the former extensions. Parker v. State, 83 Tex. Cr. R. 81, 200 S. W. 1083; Mireles v. State, 98 Tex. Cr. R. 396, 266 S. W. 418; Hart v. State, 86 Tex. Cr. R. 653, 218 S. W. 1054; Miller v. State, 98 Tex. Cr. R. 621, 267 S. W. 487; Buckley v. State (Tex. Cr. App.) 300 S. W. 67; Frier v. State (Tex. Cr. App.) 1 S.W.(2d) 306. The statement of facts and bills of exception were both filed in the lower court on the 27th day of August. The authorities’ cited, and many, others which might be referred to, compel us to disregard the bills of exception, but the statement of facts will_ be considered under subdivision 5, art. 760, C. C. P., which reads:

“The statement of facts in a felony case filed within, 90 days from date notice of appeal is given shall be considered as having been filed within the time allowed by law for filing same, notwithstanding the succeeding provisions of this subdivision.”

M. B. Anderson operated a tailor and pressing establishment in the city of Dallas, and appellant worked for him. The place was burglarized on the night of November 27th, and some $350 worth of clothing and other articles taken from the shop. Among them were eight new suits of clothes, a sweater, a grey overcoat, a new hand bag, and a hat. No property was ever recovered by Anderson except the hat, hand bag, and overcoat. He received them from Mr. Taylor, sheriff of Marion county, some 2 months after the burglary. Anderson testified that he notified Mr. Tajdor to get the property from a relative of appellant who lived at Jefferson. Taylor was present as a witness, and testified that he got the overcoat from one Henry Olds, the hand bag from Emmett Gooper, and the hat from Abe Cooper. None of this property was found in the possession of appellant. Neither Olds nor the Coopers were produced to testify that they received the alleged stolen property from appellant. One witness testified that on the night of the burglary he met appellant on the railroad tra.cks in Dallas about 10 :30 at night, and that appellant was wearing a grey overcoat and carrying a black hand bag, but no effort was made to show by this witness nor any one else the identity of these articles with those which had been stolen. The inability of the state to trace into the hands of appellant any property which had been stolen from the burglarized store presents a complete failure to make out a case.

On account of the insufficiency of the evidence, the judgment must be reversed and the cause .remanded. 
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