In his motion for rehearing appellant seems to contend that we did not consider his statement of facts. We did, and held the evidence sufficient.
The case is a felony because of the fact that an alternative punishment may be given of imprisonment in the penitentiary. See Art. 47, P. C. Art. 760, C. C. P., in so many words, says that in every *Page 181 felony case the filing of a statement of facts within ninety days after notice of appeal, shall be within the time allowed by law, no matter how short or how long be the term of court. In this case the term of court continued more than eight weeks. Notice of appeal was entered on March 1st, and the statement of facts was filed May 19th following. It was in time.
We see no error in what was said in our original opinion upholding the action of the lower court in deciding against appellant on the hearing of his motion for the entry of a nunc pro tunc order extending the time for filing bills of exception. The evidence then heard was conflicting. The discretion of the trial court in such case is not shown to have been abused.
The different counts of the indictment were evidently drawn to meet possible phases of testimony, all relating to and growing out of a single transaction. In such case no election can be compelled, and a general verdict must be upheld.
The motion for rehearing will be overruled.
Overruled.
HAWKINS, J., absent.