Choate v. State

128 S.W. 624, 59 Tex. Crim. 266, 1910 Tex. Crim. App. LEXIS 283

Opinion

McCORD, Judge.

We find in the record a statement of facts made out by questions and answers. The same can not be considered. We have repeatedly held that under the provisions of the Act of the Thirtieth Legislature in regard to same, statements of facts will not be

considered when sent up to this court in this form. See Hargrave v. State, 53 Texas Crim. Rep., 147, and Fox v. State, 53 Texas Crim. Rep., 150. Therefore said statement of facts will be stricken out.

We find in the record a bill of exceptions to the action of the court in refusing to grant the defendant a continuance for the want of the testimony of one Caesar Johnson and wife. In the absence of a statement of facts we can not consider this bill of exceptions. We can not judge of the materiality of this testimony. The appellant contends in his motion that he could prove by Caesar Johnson and his wife that they heard the prosecuting witness on one occasion state that he intended to get even with the appellant for some wrong that he claimed appellant did him. We are not advised how this testimony was' material and therefore in the absence of a statement of facts the same can not be considered. This is the only bill of exceptions in the record.

Complaint is made of the charge of the court but in the absence of the statement of facts we are unable to determine whether there was prejudicial error committed by the court or not.

The judgment is affirmed.

Affirmed.