The State’s Attorney has filed a brief herein which we think property discusses and disposes of the questions presented in this appeal, and we adopt the same as follows:
“Appellant was convicted in the District Court of Wood County, Texas, of the offense of burglary, and his punishment assessed at two years in the penitentiary.
“His motion for new trial was overruled and notice of appeal given on the 18th day of October, 1946. No order was ever entered by the court extending the time in which to file bills of exception. Thereafter, on November 26, appellant filed several bills of exception, which was eight days after the expiration ■of the thirty-day statutory period in which to file said bills. No statement of facts is brought forward and said bills, therefore, could not be properly appraised if they had been timely filed. In view of the late filing of same, however, the State re*342spectfully suggests that same should not be considered. Art. 760, C. C. P., and many authorities cited thereunder.
“However, we find in the transcript an affidavit by Bert Barr, one of the attorneys for appellant, wherein he attempts to excuse or justify the late filing of said bills upon the ground that he sent said bills of exception to the clerk of the District Court of Wood County, Texas, and that same were received by said clerk on the 13th of November, 1946, four days before the expiration date for filing said bills, and that he requested the clerk to secure the signature of the District Judge and file said bills. The clerk of said court files an affidavit certifying that he did receive the bills on said date of November 13, 1946.
“We believe that under the affidavits as brought forward that the appellant has wholly failed to show that he used due diligence in an effort to timely file said bills and that therefore same should not be considered. Mr. Branch, in his Annotated Penal Code, page 140, section 219, states: ‘If bills of exception are presented to the judge within the time required, and are not filed in time, they will not be considered if defendant was wanting in diligence in not following them up, and seeing that they were approved and filed in time) ’ citing numerous authorities. See also Clampitt v. State, 96 Tex. Cr .R. 148, 256 S. W. 272.”
In accord with the above reasoning, we find no error shown herein, and the judgment is therefore affirmed.
Presiding Judge Hawkins absent.