Appellant was convicted in the district court of Falls County of selling liquor containing more than one per cent of alcohol by volume, and his punishment fixed at one year in the penitentiary.
The State moves to strike out all of appellant's bills of exception except that which is No. 1, for the reason that the order extending the time in which to file said bills of exception was entered after the expiration of the time allowed in the original order made by the trial court for such filing. An inspection of the record shows that on October 28, 1922, appellant's motion for a new trial was overruled and the court made an order allowing sixty days "from this date" in which to file statement of facts and bills of exception. Computation discloses that from October 28th to December 29th, the latter being the date on which the court made an order of extension, is sixty-two days. This court has always held that the trial court is without power to make an order extending the time for the filing of bills of exception, in vacation or at a subsequent term of the court, after the expiration of the time originally granted for the filing of such bills of exception. Sanders v. State,60 Tex. Crim. 34; Griffin v. State, 59 Tex.Crim. Rep.; Palmer v. State, 92 Tex.Crim. Rep., 245 S.W. Rep., 238. The bills of exception, save No. 1, were filed too late.
Appellant's bill of exceptions No. 1 complains of misconduct on the part of the trial court, it being alleged that the jury communicated to the judge their desire to have read to them a part of the testimony introduced upon the trial, and that the court declined to have same introduced, it being alleged that this transpired out *Page 577 of the presence and hearing of the defendant. Appellant was on bond at the time of trial and was free to go where he pleased. He says that he saw the learned trial court speak to one of the jurors who stood in the jury room door after supper on the night of his trial but that he could not tell what the judge or the juror said. He denied being present before supper in the District Court room when the jury came in and asked the judge to have testimony read to it. The statement of the trial court appears also in the bill of exceptions. He states that some time after the jury had retired they came into the courtroom in charge of the deputy sheriff and their foreman stated that some of the jurors would like to have the court stenographer read his notes showing what, if anything, the defendant had stated about the money alleged to have been paid to him for the whisky in question. The judge further states that he did not know before they came into the courtroom that they were going to make any request for the reading of the testimony. When the foreman stated to the court what was wanted, he replied that the reporter who took the testimony was not the regular court reporter but was Mr. Davis, a reporter of the Hillsboro District Court who was temporarily supplying, and that he felt quite sure that the reporter had left for Hillsboro and had taken his note books with him. It is further stated by the court that neither of appellant's counsel was present nor were they sent for by him. It is further shown that the court had been informed by one of appellant's counsel that if the jury came in with a verdict, the court might receive same without calling him. This was not true of the other of appellant's attorneys. After informing the jury that the court stenographer had gone home, the court further told the jury they could go to supper. The court then further states that when he left the courtroom to go to supper himself he passed by appellant who was sitting in the courtroom, and told him that he need not wait any longer but he could go to supper himself and come back about 7:30 or 8 o'clock. The trial judge says he is not able to state positively that appellant was in the court room at the time the jury came in in charge of the deputy sheriff and made the request and received the reply above referred to, but it is his best recollection and belief that appellant was in the court room at the time. The court further certifies that the substitute court reporter had in fact left Marlin and gone to his home in Hillsboro. After supper the judge returned to the court room and found the defendant sitting there waiting for the jury's report. Later the court called one of the jurors to the door to find out whether they desired him to wait upon them any longer and being advised by the foreman that they did not expect to report that night, the judge went home.
It is urged that this was in violation of the statute and of the rights of the appellant. In Washington v. State, 56 Texas Crim. *Page 578 Rep., 195, this court stated that where the jury came into the courtroom in the absence of the defendant and asked to be discharged, and the court declined to grant their request, stating to them that he had to leave town the following day, this conduct constituted no such violation of Article 753-756, C.C.P., as would call for a reversal of the case. We are not quite clear as to whether appellant's main contention in this regard is based on the fact that he was not present at the time the jury came in, or upon the fact that the trial court did not communicate to the attorneys the wish of the jury and make some effort to obtain the stenographer's report of the defendant's testimony. We would not deem the latter contention of any merit inasmuch as it is stated by the court without contradiction that the court reporter had gone to his home at Hillsboro. The request of the jury was not made in writing, and as far as we may ascertain of what same consisted from said bill of exceptions, the matter upon which they desired defendant's testimony repeated would seem to be of little materiality. We do not think that the complaint contained in this bill of exceptions of that grave character from which an injury could be inferred, nor that the violation of the statute is any more serious than that decided adversely to the accused in the case of Washington v. State, supra.
The evidence in the case is ample to support the judgment of guilty. The State's testimony showed a sale of a jug of whisky shown by analysis to contain fifty-three per cent alcohol, by appellant to a State witness. Officers testified that they had furnished this witness with marked money and after he returned with the liquor which he had bought, they went to appellant's home and there found the marked money. A witness testified to conversations had by him with appellant while on bond in which appellant stated that a certain party had furnished him with liquor and had told him that if anybody wanted it for him to let them have it.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON REHEARING. October 31, 1923.