Bracher v. State

HARPER, Judge. Appellant was prosecuted and convicted of robbery, and his punishment assessed at five years confinement in the State penitentiary. There are no bills of exceptions contained in the record. There is a purported statement of facts, but the judge trying the cause certifies that same was not presented to him until August 30, 1913. This case was tried January 25, 1913, and sentence pronounced on February 24, 1913. The official stenographer’s Act provides that time may be extended in which to file statements of facts and bills of exceptions, and, further, provides that a statement of facts in a felony case may be filed, whether time is granted by the trial judge or not, at any time before the time of filing of the transcript in the appellate court expires. We have frequently had occasion to call attention to the fact that the time for filing transcripts in the appellate court expires in ninety days from the adjournment of the term of court, or if the term extends more than eight weeks, within ninety days from date of sentence. See. 7 of chap. 119, Acts of Thirty-second Legislature; arts. 929, 930, 931, and 934 *200 of Code of Criminal Procedure; Rule 2 of the Supreme Court, 142 S. W. Rep., and Rule 1, page xvii; Constitution, sec. 25 of art. 5. There is another matter disclosed by this record we would call attention to. The motion for a- new trial was filed on January 27th and overruled on February 22, 1913. After said motion for new trial was overruled, appellant, without leave of the court, undertakes to file, two days after the motion for new trial had been overruled, an amended motion for a new trial, which the record does not disclose was ever called to the attention of this court. Under such circumstances this court would not be authorized to consider the amended motion for new trial. If, after the motion for new trial has been overruled by the trial court, an appellant desires to file an amended motion for new trial, he should file a motion asking the trial court to set aside the order overruling the motion for new trial and grant him a new trial, and the record should disclose by an order duly entered that such action was taken, and that the trial court then ruled on the amended motion. There being no statement of facts we can consider, no matter is presented we can review. The judgment is affirmed. Affirmed.