Burrell v. State

11 S.W.2d 794, 111 Tex. Crim. 149, 1928 Tex. Crim. App. LEXIS 793

Opinion

MORROW, Presiding Judge.

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

Bill Townsend, the alleged purchaser, gave specific testimony to the effect that he- purchased from the appellant a pint of whisky for which he paid him two dollars. Appellant testified and denied the sale. The issue was submitted to the jury in a charge against which there is no complaint.

Motion for new trial and supplemental motion were filed and are embraced in what is denominated a bill of exceptions. The judgment overruling the motion for new trial recites that evidence was heard upon the motion but such evidence is not brought forward by bill of exceptions or statement of facts. A motion for new trial cannot be regarded as a substitute for a bill of exceptions with reference to matters which can only be reviewed when presented by way of a bill of exceptions. See Jones v. State, 9 S. W. (2d) 347; Holliday v. State, 100 Tex. Crim. Rep. 226; Holmes v. State, 293 S. W. Rep. 571. Touching any question of fact raised by the motion for new trial, the recital of the judgment of the court overruling the motion that evidence was heard,- on appeal, is conclusive against the accused unless the evidence is brought forward in such manner that the facts may be made known to the reviewing court.

Finding no error, the judgment is affirmed.

Affirmed.