Appellant has filed a lengthy motion for rehearing in which he earnestly insists that his bills of exception should be considered. While he admits they were not filed for more than a year after the trial of the case, yet he says he prepared them in February prior thereto and notified the prosecuting officers that they were ready for their inspection. He then admits he held them until in May, when he for the first time delivered them to the trial judge and requested him to act thereon. This was about six months after the trial. In Riojas v. State, 36 Tex. Crim. 182, this court, speaking through *Page 228 Judge Henderson, said: "Appellant presents to this court a bill of exceptions to the admission of certain evidence, signed and approved by the judge and filed after the expiration of the term. Accompanying the bill is the following explanation by the judge: `This bill of exceptions was handed me within the time prescribed by law, and during the term of court at which the case was tried, but was in some manner misplaced, and it is a fact that the exception to the admission of the testimony was reserved by the defendant, through his counsel, at the time of the admission of the same; and the clerk of the district court of Atascosa County is here now ordered to file the same as part of the record in this case, and transcribe same, making a certified copy of same, and all indorsements thereon, and forward same to Austin as a part of the transcript in said cause.' This bill can not be considered. While it seemingly was neglect on the part of the judge not to approve and file the bill of exceptions, it was the duty of counsel to follow up his bill, and see that it was approved by the judge during the term, and filed with the clerk. This is statutory. See, George v. State, 25 Texas Crim. App., 229; Exon v. State, 33 Tex.Crim. Rep.." It is thus seen it is made the imperative duty of appellant to see that his bills of exception are filed within the time fixed by law. This is the law, and we are and should be bound thereby. It is seen in this case, it is held that even had appellant delivered the bills to the judge in time, it would still have been his duty to have followed them up and had them acted on and filed. In this case though it appears they were not delivered to the judge within time, and relied on the promise of an attorney that the law should be ignored and overridden. When this is called to our attention, we can not sanction nor permit it.
Again he says the statement of facts was made out on March 7th and sent to him, and a duplicate was sent to the district clerk, which was received on March 12th, but it is not contended that either had been agreed to by counsel or approved by the judge at that time, and it is manifest by the record and papers before us that the statement of facts was not presented to the judge for his approval until more than one hundred days had elapsed after the adjournment of court for the term. Had appellant been diligent when he received the statement of facts on March 12th, and secured an agreement from the prosecuting officers that it was correct, or if that officer declined to pass on it and then agree to it, had then delivered a copy of the statement of facts to the judge with the request that he approve same, or prepare a statement and file it, it could have been done in the time required by law, and he would then have done what the law required him to do. But he did not do this, but waited until after the time had elapsed in which he could file a statement of facts, and then presented it to the judge for his signature. Counsel can not by agreement abrogate the law, and we are not authorized to do so. No good reason is assigned, except that counsel had been busy. Counsel say that in the cases of S.P. Ward and Louis Walker, appealed from Navarro County, that the statement of facts and bills of *Page 229 exception were antedated and yet they were considered, and because we considered the record in those cases we should do so in this case. Those two and a number of other cases from other counties, in which the filing of records in this court were unnecessarily delayed, caused us at the termination of the last term of this court, in last June, to make and enter an order stating that such negligence would no longer be tolerated. This notice was published in the daily press of this State, and the clerks of all the courts were promptly notified, and the clerk of the court in this case was notified in July of last year that this record must be forwarded, and counsel were notified of such action as the sworn testimony in this record discloses, and yet no attention was paid to the matter until some six months thereafter we notified the clerk that he would be fined if this record was not filed in this court, when the bills of exception were hurriedly filed and dated back. We are but enforcing the Code of Criminal Procedure as written, and we gave notice simply that all might know that the negligence that had grown up would no longer be tolerated, and yet counsel say although, after receiving notice that this court had entered such an order, they still ignored the law, because it had been done before the notice had been given, we should follow the policy of ignoring the law and let bills of exception and statement of facts be filed whenever it is convenient for it to be done, regardless of the law. The fact that in the Ward and Walker cases the statement of facts and bills of exception, if it was done, had been antedated, was not called to our attention, and it appeared that it was solely the negligence of the clerk that the records had not been forwarded to this court at the proper time, and for this reason they were considered. Had it been made to appear, as in this case, that they had been dated back, they would have been stricken out, as they are stricken out in this case.
The motion for rehearing is overruled.
Overruled.