In his motion for rehearing appellant calls attention to an error in the statement of the case in our former opinion, which we now correct. After a misunderstanding between appellant and deceased over a marble machine game, deceased went to his car and was apparently about to start same with a car crank. Appellant was across the street at another car. The testimony then sharply conflicts, — that of the State asserting that appellant called deceased to come over where he was, and when this was done appellant shot deceased three times without further attack or provocation on the part of deceased. The defense testimony supports the theory that deceased made threatening remarks about appellant, and came across the street toward appellant in a threatening manner with the car crank in his hand, uttering threats to beat appellant's brains out, and that appellant shot in self-defense. This condition of conflict was submitted to the jury and by them settled, and there being sufficient testimony to support their conclusion, we would be compelled to uphold their *Page 481 verdict. Appellant seems to have had considerable trouble with certain bills of exception, one of which complains of the refusal of a continuance.
In order to have the action of the lower court, in refusing a continuance, reviewed on appeal, the record before this court would have to show that a proper bill of exceptions was taken at the time of the refusal of the continuance, and that such bill was approved and filed in the lower court within the time fixed by the terms of Art. 760, C. C. P. Said article grants in express terms thirty days after the day of adjournment of the trial term in which to file bills of exception; also allows ninety days in which to file statement of facts. The trial court has power, by order properly made, to grant, for filing bills of exception, a longer time than the thirty days given by statute.
In this case the trial court overruled appellant's motion for new trial on October 27, 1933, the day before adjournment, and then made his order giving appellant fifty days "from this day" in which to prepare and file his bills of exception. As we understand this record, it is not shown or even claimed that prior to the 16th of December, 1933, on which date said fifty days expired, — any bills of exception had been filed or presented to the court below for approval. It appears that when certain bills were presented to the court below on January 9, 1934, he appended qualifications thereto and approved said bills on January 15th. Wholly regardless of the propriety or otherwise of the qualifications, this court could not consider said bills for the sufficient reason that they were not filed in the court below prior to December 16, 1933. Nothing in the record shows any attempt to procure a further extension within the fifty day period, it being within the comprehension of said statute that extension periods may be allowed provided they do not go beyond ninety days from the overruling of the motion for new trial, and provided application therefor be made within the time granted by statute, or granted by some prior order of the court.
Neither by affidavit or otherwise does appellant set up in this case that he presented to the trial court his bills of excepion within the fifty days allowed by the order of the court referred to. This being true, it seems to us entirely immaterial as to whether the qualifications appended by the court to appellant's bills be proper or otherwise. Entirely aside from the question of qualification, we could not consider the bills as said because they were not filed within said fifty day period.
Appellant cites Hall v. State, 40 S.W.2d 85, but we fear *Page 482 he misapprehends that case in which we expressly held ourselves without power to consider a statement of facts because not filed in time.
Being unable to agree with appellant's contention, the motion for rehearing will be overruled.
Overruled.
ON APPLICATION FOR WRIT OF CERTIORARI.