ON MOTION FOR REHEARING.
KRUEGER, Judge.Appellant has filed a motion for rehearing supported by the affidavit of her attorney to the effect that she applied to the trial court on the 9th day of November, 1939, for an extension of time within which to file the bills of exception and statement of facts. While the statement of facts, as the same appears in the record here, fails to show that it was filed with the clerk of the trial court, still it was forwarded to this court by the District Clerk and was filed by the clerk of this court on the 26th day of December, which was 92 days after the order of the court overruling the motion for a new trial. The clerk made an affidavit stating that if the statement had not been filed with him, he would not have forwarded it to this court. If the statement of facts was really handed to the clerk for filing, it was in contemplation of the law filed, and it must have been filed prior to the 24th day of December, because the *59925th was Christmas Day. It was filed in this court on the 26th day of December, which was the day after Christmas. Consequently, it must be assumed that the statement of facts was filed within the 90-day period. However, the bills of exception present an entirely different question. Appellant was granted fifteen days from the 25th day of October, within which to file the bills of exception. This time expired on the 9th day of November, and the order of the court showing further extension is dated the 10th day of November, as shown by the record, which is one day too late. Of course, appellant seeks to controvert the record by an ex parte affidavit stating that in truth and in fact the order of extension was granted by the court on the 9th day of November. This dehors the record. If he had an affidavit from the court stating that through mistake or inadvertence an error was made in the date as to when the extension was actually made, then a different question might be presented, but under the conditions in which the record is before us, we cannot consider the bills. Even if we should consider the bills, they are all qualified by the court and as qualified they fail to present reversible error. See 4 Tex. Jur., p. 469, sec. 327; Mathason v. State, 89 Tex. Cr. R. 136.
The motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.