At a former day of this term this case was affirmed. Appellant has filed a motion for rehearing, asking that the judgment be set aside, and the bills of exception found in the record be considered, and accompanies said application with affidavits that the bills of exception were presented to the judge within the time provided, though not approved by him, nor filed until after the expiration of the time. In Biojas v. The State,36 Tex. Crim. 185, this court held: "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 this 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 court is ordered to file same as a part of the record.' This bill can not be considered. While it seemingly was neglect on the part of the judge not to approve and file the bill, it was the duty of counsel to follow this bill, and see that it was approved by the judge and filed by the clerk," citing authorities.
In this case no such showing is made as in that case, for the judge says he does not know when the bills of exception were presented to him, and when spoken to about it, he referred the inquiring person to appellant's counsel. It appears to be the rule of this court that unless diligence is shown, bills of exception not filed within the time fixed by law will not be considered, and that it is a duty of appellant or his counsel to give personal attention to the matter and not place dependence on someone else.
Overruled. *Page 413