The appeal in this case is from a judgment convicting appellant of murder in the second degree and assessing his punishment at confinement in the penitentiary for life.
It appears from the record that the District Court began in Wichita County upon the 31st day of May, 1909, and adjourned on the 3rd day of September of the same year, the term including considerable time beyond eight weeks. It further appears that the appellant's motion for new trial was overruled on July 13th of last year and he was by the court on the same day duly sentenced. The statement of facts in the case was filed in the court below on October 1, 1909. On August 13th the court made and entered an order as follows: "Upon request defendant is granted sixty days extension of time from this day in which to file statement of facts and bills of exception." From July 13th to August 13th, excluding both days, full thirty days intervened, and with the close of August 12, 1909, the time allowed by law within which to file a statement of facts, in view of the fact that the term of court lasted more than eight weeks, had elapsed. It was not competent for the court thereafter, by order, to extend the time for filing such statement of facts. Section 7 of the Act of the Thirty-first Legislature, p. 376, is as follows:
"When an appeal is taken from the judgment rendered in any cause in any District Court or County Court, the parties to the suit shall be entitled to and they are hereby granted thirty days after the day of adjournment of court in which to prepare and file a statement of facts and bills of exception; and upon good cause shown the judge trying the cause may extend the time in which to file a statement of facts and bills of exception. Provided, that the court trying such cause shall have power in term time or in vacation, upon the application of either party, for good cause, to extend the several times as hereinbefore provided for the preparation and filing of the statement of facts and bills of exception, but the same shall not be so extended so as to delay the filing of the statement of facts, together with the transcript of record, in the Appellate Court within the time prescribed by law, and when the parties fail to agree upon a statement of facts, and that duty devolves upon the court the court shall have such time in which to do so, after the expiration of the thirty days as hereinbefore provided, as the court may deem necessary, but the court in such case, shall not postpone the preparation and filing of such statement of facts and bills of exception so as to delay the filing of same, together with a transcript of the record in the Appellate Court within the time prescribed by law. Provided, if the term of said court may by law continue more than eight weeks, said statement of facts and bills of exception shall be filed within thirty days after final judgment shall be rendered unless the court shall by order entered of record in *Page 76 said cause extend the time for filing such statement and bills of exception." We have heretofore held that when once the time allowed by law within which to file the statement of facts and bills of exception has passed it is not competent for the court by order to extend the time. This seems to be the clear meaning of the statute. We are not, therefore, authorized to consider either the statement of facts or bills of exception in the record. Without a statement of facts or bills of exception, there is no issue or question which, under the law, we are authorized to consider and it follows that the judgment of conviction must be and it is hereby affirmed.
Affirmed.
ON MOTION FOR REHEARING. October 12, 1910.