Leago v. State

• Decision Date: 02 January 1929
• Docket Number: (No. 12130.)
• Citation: 13 S.W.2d 852
• Parties: LEAGO v. STATE.
• Court: Texas Court of Criminal Appeals

13 S.W.2d 852

LEAGO v. STATE.

(No. 12130.)

Court of Criminal Appeals of Texas.

January 2, 1929.

Rehearing Denied February 27, 1929.

Appeal from Criminal District Court No. 2, Harris County; Langston G. King, Judge.

Frank Leago was convicted of unlawfully manufacturing intoxicating liquor, and he appeals. Affirmed.

C. E. Smith, of Houston, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MORROW, P. J.

The offense is the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.

In his brief, appellant insists that there should be a reversal of the judgment because of the receipt of inadmissible testimony, namely, that of the officers who made the search of his premises. The bills of exceptions making complaint of the rulings to which the brief refers appear to have been filed on the 24th day of July, 1928. The motion for new trial was overruled on May 2, 1928, and the court adjourned on the 5th of that month. Therefore it appears that the bills were filed 80 days after court adjourned. In the record we find that on the 25th of May the court entered an order allowing 30 days additional to a like amount previously granted within which to file the bills of exceptions. We find no previous order of the court, but the law (article 760, subd. 5, C. C. P. 1925) permitted, without an order of the court, 30 days after adjournment within which to file the bills of exceptions. It is apparent that the bills in the present instance were filed too late to authorize their consideration by this court.

It seems that on the 24th day of July the court attempted to authorize an additional 30 days' extension of time. The order last mentioned, however, cannot avail the appellant, nor does it authorize a consideration of the bills by this court, for the reason that at the time it was made the trial judge was without authority to make the extension, his power to do so having ceased immediately after the expiration of the 60 days previously granted. The reasons for this conclusion are stated at some length in the case of Nothaf v. State, 91 Tex. Cr. R. 378, 239 S. W. 215, 23 A. L. R. 1374, in which a number of precedents are cited. Additional announcements to the same effect are found in Chisholm v. State, 108 Tex. Cr. R. 401, 1 S.W.(2d) 613; Stewart v. State, 108 Tex. Cr. R. 661, 2 S.W. (2d) 440; Buckley v. State, 108 Tex. Cr. R. 316, 300 S. W. 67; Hubbard v. State, 109 Tex. Cr. R. 320, 4 S.W.(2d) 971.

The evidence of the officers who searched the appellant's premises is definite and conclusive to the effect that he was engaged in the manufacture of intoxicating liquor. Their testimony is, moreover, supplemented by that of the son of the appellant, who was called as a witness by the appellant, and who testified that his father was the owner of the still which was found by the officers and described by them in their testimony, and also the whisky which had been manufactured; that the witness and his father had co-operated in operating the still, the witness acting as a servant of his father.

Finding no error...