Phillipps v. State

MORROW, Presiding Judge. Theft of an automobile is the offense; penalty assessed at confinement in the penitentiary for two years. The purported statement of facts is entirely in question and answer form. This court is not authorized to consider it for any purpose. See Acts of 42nd Legislature, 1st Called Session; Chapter 34, p. 75; also the application of the article in Wooten v. State, 50 S. W. (2d) 834; Olivares v. State, 53 S. W. (2d) 305; Hill v. State, 55 S. W. (2d) 835; Turman v. State, 60 S. W. (2d) 231; Oliver v. State, 60 S. W. (2d) 234. The record contains but one bill of exception, which complains of the argument of the attorney for the state. Without quoting the argument, we will state that it transcends the rule of legitimate debate and comments upon matters not open to discussion unless invited by the opposing party. However, the absence of the statement of facts precludes the authority of the court to order a reversal of the conviction because of the argument. Not having before us the evidence heard by the jury, we cannot be assured but that the evidence of guilt was conclusive and uncontroverted. Especially is this true in view of the approval of the verdict by the trial judge. Under the circumstances, we are constrained to affirm the judgment with the statement that if there were before us evidence presenting a question touching the guilt of the accused, we would be disposed to order a reversal of the judgment because of the argument mentioned. The judgment is affirmed. Affirmed.