Appellant was convicted in the District Court of Walker County of assault to murder, and his punishment fixed at five years in the penitentiary.
The State objects to our consideration of the statement of facts herein upon the ground that same was filed too late in the trial court. The record discloses that the trial term of the lower court adjourned December 11, 1920; that an order granting appellant sixty days after adjournment in which to file statement of facts, was duly entered. The statement of facts was filed in said court February 14, 1921, which by count was sixty-five days after adjournment. In Maxwell v. State, 69 Tex.Crim. Rep., 153 S.W. Rep., 324, we said: *Page 556
"While in the Code of Criminal Procedure there is no time fixed for filing the transcript in this court, yet the Code provides that upon the adjournment of the court the clerk shall immediately make out and forward the transcript to this court, and that transcripts in criminal cases shall be made out before the transcripts in civil cases; so under no construction can it be held that the Legislature intended to grant more than 90 days in which to file a statement of facts in the trial court."
This we think announces a correct rule under the last clause of Article 845, Vernon's C.C.P., which is as follows:
"Provided that any statement of facts filed before the time for filing the transcripts in the appellate court expires, shall be considered as having been filed within time allowed by law for filing same."
Without further discussion we hold that the statement of facts in the instant case, being filed in the trial court within 90 days after adjournment, was not filed too late, and that the State's objection to its consideration is not tenable.
There was no exception taken to the charge of the trial court, and no bills of exception appear in the record. The only question before us then is the sufficiency of the evidence to support the verdict. The State's testimony shows that the injured party was walking along the road with his gun on his shoulder and met appellant. Said witness testified that when he looked up and saw appellant, he looked right into the barrels of a double-barrelled shotgun. He made an effort to get his gun down as he did so appellant shot him, and then shot him again. Said witness explained that appellant had threatened to kill his wife, who was a daughter of said witness, and that he had gotten word from the woman who employed his daughter to the effect that appellant had gone to her house and had tried to get appellant's wife out and she would not go, and that appellant had been for two or three hours sitting by the road which said woman had to travel, and that she, the employer of appellant's wife, wanted witness to go to her house and take his daughter home. Said witness stated that he was going to the place where his daughter worked when he met appellant and the shooting took place. This witness said that when he saw appellant with the gun pointed at him, he tried to get his gun down to shoot appellant, and would have done so if he could; that after he was shot he cocked his gun and tried to bring it up and shoot, but being shot in the arm he was unable to get his gun up and it went off before he could raise it.
We think the record does not present a case in which the verdict is without support. The appellant's testimony was contradictory of that of said prosecuting witness, but all matters of mere conflict of evidence are for settlement by the jury.
Finding no reversible error the judgment of the trial court will be affirmed.
Affirmed. *Page 557
ON REHEARING January 18, 1922.