Conviction for murder; punishment, five years in the penitentiary.
This record is a peculiar condition. The case went to trial on November 16, 1931. The charge of the court and requested charges were filed November 18th, on which date also the verdict was returned. The motion for new trial was filed November 20th, and on the same day overruled, and sixty days granted appellant for filing his bills of exception and statement of facts. This time would have ended January 19, 1932. On this date, however, the court granted an extension of time to February 19th, which would have been one day beyond the full ninety days allowed by the terms of article 760, subd. 5, C. C. P., for filing bills of exception and statement of facts. Manifestly, the trial court has no power to grant longer than ninety days after the overruling of the motion for new trial and the giving of notice of appeal. Appellant's request for this latter extension recites specifically that he had, up to then, been unable to prepare his bills of exception because he had not gotten a transcript of the testimony. Notwithstanding the above, the court on February 16, 1932, attempted to grant appellant ten days additional from and after February 19th, in which to file statement of facts and bills of exception. This was a matter ultra vires, and such attempt could convey no right to have considered such documents when filed after the ninety days allowed by statute.
Notwithstanding the facts recited and dates shown as above set out, we find in this transcript eight bills of exception, each certified by the clerk of the trial court as having been filed herein on November 16, 1931, *Page 440 or four days before the conclusion of the trial in the district court, and nearly ninety days prior to the date when appellant, in an application for extension, set up that he had not yet prepared any bills of exception. It becomes a matter of some gravity when the clerk of a court violates the terms of articles 358-359, P. C., but we are persuaded that the certificate of said clerk was so affixed through mistake or lack of information. Clerks of trial courts are without power to antedate or attempt to file back bills of exception, even though ordered so to do by trial courts, which latter does not appear in the instant case. We cannot consider said bills of exception. Nor can we consider the statement of facts herein which should have been filed prior to February 18, 1932, but shows to have been filed on February 29, 1932. The fundamental matters of procedure appear to be regular.
No error being shown, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.