The state moves for rehearing. We have again gone carefully over the record. That it is in a condition of some confusion, is clear. The verdict was rendered January 27, 1933. The sentence, as shown on Minute Book G, is dated February 3, 1933, and it appears from the copy of same in this record that on said date and in connection with his being sentenced, appellant gave notice of appeal to this court, same being the only such notice appearing in the record.
The bills of exception in the case appear to have been filed on May 18, 1933, 104 days after the entry of the notice of appeal. Article 760, C. C. P., is definite in its requirement that in no case can bills of exception be considered when filed in the court below more than 90 days after the giving of notice of appeal.
It is above stated that this record exhibits confusion. From same it also appears that appellant's motion for new trial was overruled on February 28, 1933, but no notice of appeal appears to have been then given. We find also in the record a copy of an application for an extension of time in which to file statement of facts and bills of exception, which was filed April 17, 1933, and recites that notice of appeal was given March 28, 1933, — which date was more than three weeks after the adjournment of the term on March 4th. In this condition of the record we must reconsider what was said in our former opinion after considering appellant's bills of exception.
For the reasons above stated the state's motion for rehearing is granted, the judgment of reversal is set aside, and the judgment of the trial court will now be affirmed.
Affirmed.
ON APPELLANT'S MOTION FOR REHEARING.