The offense is murder; the punishment, confinement in the penitentiary for fifteen years.
It was charged in the indictment, in substance, that appellant, with malice aforethought, killed James S. Rollins by shooting him with a gun.
Appellant and deceased had been gambling on a marble machine. According to the testimony of appellant, a quarrel arose in which deceased called him a liar. The game terminated and the parties separated, but later met near the automobile of deceased. According to the testimony of witnesses for the State, deceased was cranking his automobile when appellant approached and engaged him in conversation. Without provocation *Page 479 appellant drew a pistol and shot deceased. Deceased backed away from appellant with the automobile crank in his hand, begging him not to shoot him again. Appellant fired two other shots, both of which took effect, and deceased fell, mortally wounded.
Appellant testified that deceased cursed him and told him he would beat his brains out with the automobile crank; that as deceased came toward him with the crank he shot deceased in the belief that he was in danger of suffering death or serious bodily injury. The testimony of several of appellant's witnesses supported the defensive theory.
We find in a supplemental transcript two bills of exception which appear to have been filed too late. The term at which appellant was tried was adjourned October 28, 1933. The motion for a new trial was overruled October 27, 1933, notice of appeal being given on the same date. In overruling the motion for new trial the court granted appellant fifty days from October 27, 1933, in which to file his bills of exception. The bills were not filed until January 19, 1934, which was 83 days after the adjournment of the trial term and 84 days after the date notice of appeal was given. Under the terms of article 760, C. C. P., without an order of extension, appellant was entitled to 30 days after the date of the adjournment of the court in which to file his bills of exception. The trial court had the power to extend the time as was done in the present case. However, no further extension order is found in the record. In the state of the record, this court is without authority to consider the bills of exception. McElreath v. State, 56 S.W.2d 462.
On the 29th of March, 1934, we granted appellant's application for writ of certiorari and ordered the clerk of the district court of Lamar County to prepare and transmit to this court a perfected transcript of the record in this cause. Appellant sought in his application to have embraced in the record bills of exception to the action of the trial court in qualifying the bills of exception found in the record. The answer of the clerk of the trial court shows that these bills of exception are not on file below, but are attached to and made a part of appellant's brief in this court. Appellant now presents a second application for writ of certiorari. It is unnecessary to determine whether this court has authority to consider the purported bills of exception attached to appellant's brief. As already stated, an examination of said purported bills discloses that they relate solely to appellant's exceptions to the qualifications appended to the bills of exception found in the record. None of said bills *Page 480 relating to the qualification to the bills of exception is approved by the trial judge. Disclaiming any intention of holding that the exceptions to the qualifications are in condition to be considered, it has been pointed out that bills of exception in the record were filed too late and are not entitled to consideration, with or without the qualification of the trial judge. Hence it is immaterial whether appellant excepted to said qualifications. It would be of no avail to appellant to grant the second application for writ of certiorari, and it is therefore denied.
In his motion for a new trial appellant set up newly discovered evidence, and attached thereto the affidavit of the witness whose testimony he desired. The order of the court overruling the motion recites that evidence was heard. The evidence heard by the trial judge is not brought forward. Under the circumstances, this court must presume that the court's action in overruling the motion was correct, and that the trial court acted upon evidence that was sufficient to justify his action. Railey v. State, 67 S.W.2d 607, and authorities cited.
Second application for certiorari denied and judgment affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING