Barnhart v. State

Court of Criminal Appeals of Texas

Barnhart v. State

288 S.W. 453, 105 Tex. Crim. 356, 1926 Tex. Crim. App. LEXIS 545

CourtCourt of Criminal Appeals of Texas

DecidedMay 19, 1926

DocketNo. 10091.

StatusPublished

This text of 288 S.W. 453 (Barnhart v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Barnhart v. State, 288 S.W. 453, 105 Tex. Crim. 356, 1926 Tex. Crim. App. LEXIS 545 (Tex. 1926).

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Opinions

BAKER, Judge.

The appellant was convicted in the District Court of Nacogdoches County for the offense of unlawfully manufacturing intoxicating liquor, and his punishment assessed at one year in the penitentiary.

The record discloses* that the district court convened on the 7th day of September, 1925, adjourned October 24, 1925, the appellant was tried and convicted on the 26th day of September, 1925, and his motion for new trial was overruled on the 29th day of September, 1925, at which time notice of appeal was given and an order entered granting him 90 days from the adjournment of said term of court within which to file his bills of exception and statement of facts. The record further discloses that the appellant’s statement of facts was filed 107 days, and the-bills of exception were filed 114 days, after said notice of appeal was given. The State’s Attorneys with this court object to our consideration of the statement of facts and bills of exception because same were filed more than 90 days after said notice of appeal was given. Art. 760, 1925 C. C. P., specifically states that bills of exception and statements of fact must be filed within 90 days from the date of the notice of appeal. This court, in *358 Triggs v. State, No. 10082, opinion rendered April 28, 1926, and Bailey v. State, No. 10078, opinion rendered April 21, 1926, both cases yet unreported, held, in construing said article, supra, that statements of fact and bills of exception filed more than 90 days after notice of appeal was given were too late to be considered by this court. It necessarily follows that the contention of said attorneys for the state will have to be sustained.

With the bills of exception and statement of facts eliminated, and the other proceedings in the trial appearing regular, we are of the opinion that the judgment of the trial court should be in all things affirmed, and it is accordingly so ordered.

Affirmed.

The foregoing opinion by the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

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BAKER, Judge.

The appellant was convicted in the District Court of Nacogdoches County for the offense of unlawfully manufacturing intoxicating liquor, and his punishment assessed at one year in the penitentiary.

The record discloses* that the district court convened on the 7th day of September, 1925, adjourned October 24, 1925, the appellant was tried and convicted on the 26th day of September, 1925, and his motion for new trial was overruled on the 29th day of September, 1925, at which time notice of appeal was given and an order entered granting him 90 days from the adjournment of said term of court within which to file his bills of exception and statement of facts. The record further discloses that the appellant’s statement of facts was filed 107 days, and the-bills of exception were filed 114 days, after said notice of appeal was given. The State’s Attorneys with this court object to our consideration of the statement of facts and bills of exception because same were filed more than 90 days after said notice of appeal was given. Art. 760, 1925 C. C. P., specifically states that bills of exception and statements of fact must be filed within 90 days from the date of the notice of appeal. This court, in *358 Triggs v. State, No. 10082, opinion rendered April 28, 1926, and Bailey v. State, No. 10078, opinion rendered April 21, 1926, both cases yet unreported, held, in construing said article, supra, that statements of fact and bills of exception filed more than 90 days after notice of appeal was given were too late to be considered by this court. It necessarily follows that the contention of said attorneys for the state will have to be sustained.

With the bills of exception and statement of facts eliminated, and the other proceedings in the trial appearing regular, we are of the opinion that the judgment of the trial court should be in all things affirmed, and it is accordingly so ordered.

Affirmed.

The foregoing opinion by the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

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288 S.W. 453, 105 Tex. Crim. 356, 1926 Tex. Crim. App. LEXIS 545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnhart-v-state-texcrimapp-1926.

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