The judgment herein was affirmed some time since and appellant has filed a motion for rehearing. In the opinion of affirmance it was stated the record contained no bills of exception. The motion for rehearing is not accompanied by bills of exception, but is accompanied by an affidavit of Judge Crawford, the district judge who tried the case. The bills of exception and statement of facts bears file mark of July 3. The court adjourned on the 5th day of April. The latter part of June or first of July Judge Crawford went to Galveston to spend his vacation, at which time there were several statements of facts and bills of exception in cases tried before him to be approved. He says: "Before leaving Dallas I advised the county attorney that in the event there arose any disagreement as to statements of facts or bills of exception in any case between the attorneys representing the State and the defendant, that I would immediately return from Galveston and take the matter up of approving the statements of fact and bills of exception with counsel for both sides; and in this connection directed the county attorney and in the event of such disagreement that he at once notify me at Galveston of such disagreement and that I would return to Dallas for the purpose above stated. While in Galveston I received no notification of any kind or character as to any disagreement upon any statement of fact or bills of exception in any case in my court. That the bills of exception in the case of Ed Jones, alias Ed Hodgkins, Appellant, v. State, were filed in the Criminal District Court No. 2 on July 3, 1913. I am advised by Messrs. Westerfield and Savage, counsel for the defense, that the statement of facts and bills of exception were presented to the county attorney of Dallas County some ten or fifteen days prior to the time they were filed in court. I returned from Galveston about the 20th or 21st of July, and, on the 21st or 22nd I was stricken with appendicitis and taken to the Paul Sanitarium, and there remained for a period of about two weeks, and after being removed from the sanitarium was confined at my home for a period of about one week longer. Upon my return to the bench the bills of exception, and, I believe, the statement of facts were presented to me and approved by me." The statement of facts shows to have been approved on August 11th, and it seems the bills of exception, from the statement of the judge, were approved the same time. In writing the original opinion the writer did not notice that the statement of facts was not approved by the judge until the 11th of August, and until the motion for rehearing was filed this matter was not observed. Therefore, the case was passed on upon the theory that the statement of facts was filed within the ninety days, or rather within the time authorized by law.
The filing of the statement of facts and bills of exception on the 3rd of July would not meet the question of diligence. The filing of the statement of facts is not authorized until approved by the judge, *Page 355 and would have no force and effect as bills of exception and statement of facts until so approved. If the failure to get the statement of facts and bills of exception into the record within the time required arose from no fault of the defendant, and they were subsequently approved by the judge as being correct, they would be considered, but if he was for any cause, through no fault of his, deprived of a statement of facts, the judgment would be reversed for that reason. Appellant's counsel do not controvert the statements of the district judge in any way, but attaches it to his motion for rehearing, therefore, taking the statement of the judge as showing the real condition of affairs, and as being correct, he could have been reached at Galveston in ample time to have had the statement of facts and bills of exception approved and filed before the 5th of July, which seems to have been the last day in which they could have been filed under the ninety days rule. It is shown that the time was extended to the complete ninety days, but even had it not been, it would seem under our practice laid down by the decisions of this court in felony cases that a party would have ninety days as a matter of law. It appears further that the statement of facts and bills of exception were presented to the county attorney ten or fifteen days before being filed on the 3rd of July. The district judge was not notified so that he might return and look over the matters, nor did counsel for appellant seek the district judge or send him the bills of exceptions and statement of facts. This shows a want of diligence under all of the authorities in securing the approval of the judge. Had he been notified he would have returned, as he states, or in the absence of notification, as he had indicated, counsel could have gone to Galveston. Under the decisions and the practice this does not show diligence to secure the evidence and the bills of exception, therefore, the bills of exception could not be considered if presented to this court. The statement of facts even is not in condition to be considered by the court, but the writer overlooked that fact and it was not called to his attention that the statement of facts was filed on the 11th of August, when same should have been filed by the 5th of July. The district judge did not go to the sanitarium on account of sickness until after the 21st of July, therefore his sickness and absence would not meet the question of failure of diligence on the part of appellant.
The motion for rehearing will be overruled.
Overruled.
[Case did not reach hands of Reporter until June, 1914.] *Page 356