ON MOTION FOR REHEARING.
LATTIMORE, Judge.Appellant’s motion for rehearing insists that we did not consider his bystanders’ bill of exceptions. We did not consider same because it was filed too late. Under Art. 760, C. C. P., the trial court may make an order limiting the time for filing bills of exceptions; such order may be made when he overrules the motion for new trial, or at any time within any period already legally granted by statute or order *556for such purpose, — provided that such time or times shall not all together exceed ninety days from the date notice of appeal is given. Bills not so filed can not be considered. In this case the motion for new trial was overruled on May 1st, and on that day appellant’s notice of appeal was entered. On May 21st following, the trial court entered an order granting to appellant sixty days from that date in which to file his bills of exceptions. Computation shows that this sixty day period expired July 20th. The bystanders’ bill referred to was filed July 22nd, and being clearly filed more than sixty days after the entry of the extending order, could not be considered.
The evidence sufficiently showed that no one knew or could have known by the exercise of reasonable diligence what kind of weapon or instrument was used in striking the fatal blow. The head of deceased was crushed, and brain matter exuded from his nose. The doctor testified deceased would have died from the effects of said wound no matter what treatment might have been given him. All persons present at the time of the infliction of the wound, so far as this record discloses, were used as witnesses on the trial. All declared themselves without knowledge as to what weapon was used. This, — we think, — sufficiently sustained the averment in the indictment that deceased was killed by the use of some instrument the size, nature and description of which was to the grand jurors unknown. See Harris v. State, 37 Texas Crim. Rep., 441; Bookman v. State, 112 Texas Crim. Rep., 233, and other authorities cited in Texas Jur., Vol. 22, p. 123.
Claiborne McNiel, the only eye-witness save appellant to the alleged murder, swore that as he ran from the house occupied by deceased and the mother of witness, he was followed by appellant, and the evidence shows that appellant was in turn followed by deceased. Claiborne said he stumbled over a stump some little distance from the porch, and as he got up he heard a lick and raised up and looked back and saw appellant hit deceased again while deceased was down; he did not know what appellant struck with. No weapon was found. Appellant as a witness denied the killing and attempted to lay it on Claiborne. If no witness could be found who could tell what weapon or instrument was used, — this would sufficiently show that such weapon was unknown to the grand jury. Many authorities could be cited.
No written request was made for a charge on aggravated assault; nor do we observe any evidence calling for such charge. While the weapon used was unknown and undescribed, it was *557of such character as to crush the skull of a mature man. Appellant’s mother, as a witness, testified that when he ran from the house just before the fatal blow was struck, he was the maddest looking man she ever saw.
We are not able to agree with appellant in any of the matters contained in his motion, and same is accordingly overruled.
Overruled.