Blackshire v. State

DAVIDSON, Judge. Appellant was convicted of murder in tbe second degree, and given a term of five years in tbe penitentiary. Tbe statement of facts was filed after adjournment of tbe term of court. The judge in approving same certifies that be ordered it “to be filed as such, in accordance with an order made in tbe case authorizing tbe statement of facts to be made up,and filed in ten days after adjournment,” but no such order is to be found in tbe record. Article 1379, Bevised Statutes, provides that “tbe court may, by an order entered upon tbe record during tbe term, authorize tbe statement of facts to be made up, and signed, and filed in vacation, at any time not exceeding ten days after adjournment of tbe term.” Tbe rules in regard to making up, certifying, and placing in the record a statement of facts are tbe same in criminal as in civil causes, by express enactment of tbe Legislature. Code Crim. Proc., art. 784; Ratcliff v. The State, 29 Texas Crim. App., 248. Construing article 1379, supra, our Supreme Court bold tbe order allowing time after adjournment of court must be entered of record, and that statements of fact filed after such adjournment can not be considered on appeal in tbe absence of such entry. It is a prerequisite to a consideration of such statement on appeal. McGuire v. Newbill, 58 Texas, 314; Ross v. McGowen, Id., 603; Railway v. McAllister, 59 Texas, 362; Trewitt v. Blundell, Id., 253; Lockett v. Schurenberg, 60 Texas, 610. Tbe action of tbe court refusing tbe application for continuance will not be revised, because tbe appellant failed to reserve bis bill of exceptions to such ruling. Willson’s Crim. Stats., sec. 2187. In tbe *162 absence of tbe evidence, we can not say tbe court erred in refusing tbe motion for new trial on account of alleged newly discovered testimony. If newly discovered, it may not bave been material, or tbe guilt of appellant may bave been clearly proved on tbe trial. We are unable to revise tbe question as presented by tbe record. Tbe matters urged for reversal, without bills of exception and statement of facts, do not show that error was committed on tbe trial. Tbe judgment is affirmed. Affirmed. Judges all present and concurring.