Appellant was convicted of murder without malice and assessed a penalty of two years in the penitentiary.
The indictment in this cause is regular in form and the bills of exception cannot be appraised without a statement of facts. According to the transcript and the file mark of the district clerk on the statement of facts, this statement was not filed within the ninety days prescribed by law and for which period the trial court may extend the time for filing the statement of facts and bills of exception.
Appellant’s attorneys have filed a motion asking this court to construe the filing date to be on December 15th, instead of January 9th. We are not empowered to hear evidence in such matters nor consider motions filed, unless there is admission of such facts as will justify the conclusion. The clerk of the district court has power to change his file mark if he has made a mistake; or a certificate from him that he had received the instrument within the proper time and had erroneously, thereafter, placed on it a different file date would be considered as an admission by the state. In such event we would be justified in receiving the statement of facts. In the state of the record, however, we are not permitted by law to consider the statement of facts in the case and cannot, for that reason, appraise the bills of exception.
The judgment of the trial court is, accordingly, affirmed.