Opinion
No. 14384.
Delivered February 17, 1932. Rehearing Denied April 13, 1932.
1. — Intoxicating Liquor — Statement of Facts — Bills of Exception.
Due to the fact that the statement of facts and bills of exception were filed more than ninety days after notice of appeal, the appellant court is precluded from considering them.
ON MOTION FOR REHEARING.2. — Charges — Statement of Facts.
In the absence of a statement of facts, special charges referred to cannot be appraised.
3. — Charge — Intoxicating Liquor.
In prosecution for transportation of whisky, there is no fundamental error in the charge.
Appeal from the District Court of Lamar County. Tried below before the Hon. George P. Blackburn, Judge.
Appeal from a conviction for unlawfully transporting intoxicating liquor; penalty, confinement in the penitentiary for four years.
Affirmed.
The opinion states the case.
R. E. Eubank, H. B. Birmingham and A. P. Dohoney, all of Paris, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Unlawfully transporting intoxicating liquor is the offense; penalty assessed at confinement in the penitentiary for four years.
The conviction was had in the district court of Lamar county at a term ending on the 26th day of October, 1929. Judgment was entered December 16, 1930. The motion for new trial was overruled on the 19th day of December, 1930, at which time notice of appeal was given and the "statutory time" allowed within which to prepare and file the statement of facts and bills of exception. The bills of exception were filed on the 4th day of April, 1930, and the statement of facts was filed on the 8th day of the same month. The bills of exception were filed on the 106th day after notice of appeal, and the statement of facts was filed on the 110th day after notice of appeal. The utmost time allowed under the statute, article 760, C. C. P., was ninety days after final judgment and notice of appeal. The precedents are numerous and uniform to the effect mentioned. See collation of cases in Vernon's Ann. Tex. C. C. P., vol. 3, p. 129; see, also, supplement to the volume mentioned, page 23; Daniel v. State, 104 Tex.Crim. Rep., 286 S.W. 221; Davis v. State, 105 Tex.Crim. Rep., 287 S.W. 1100; Burleson v. State, 105 Tex.Crim. Rep., 288 S.W. 198, and numerous others. Due to the fact that the bills of exception and statement of facts were filed more than ninety days after notice of appeal, this court is precluded from considering them. Under the circumstances mentioned, there is nothing before this court for review.
No matters appearing from the record authorizing a reversal, the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.
Appellant has procured from the clerk of the trial court a statement as to the date of the filing of his bills of exceution, which corresponds with the date mentioned in our opinion. We can not consider said bills for the reasons advanced in our former opinion. The refused special charges, which appellant now insists should have been given, can not be appraised in the absence of a statement of facts. That part of the charge of the court to which objection is now pointed out, presents no fundamental error, and is not believed by us to present any error at all. Same presented the doctrine of reasonable doubt in the beginning of the paragraph, which told the jury they must believe beyond a reasonable doubt that appellant did the things mentioned, and unless they "so believed" they should acquit. The case was correctly decided.
The motion for rehearing will be overruled.
Overruled.