Stapler v. State , 120 Tex. Crim. 263 ( 1932 )

Appellant insists that we did not discuss an alleged error in the overruling of his motion for new trial based on a claim of newly discovered evidence. We discussed the three bills of exception appearing in the record. There is in the record no bill of exception or statement of facts presenting evidence heard by the trial court upon the hearing of the motion for new trial. It appears that appellant attached to his motion for new trial affidavits of alleged newly discovered witnesses, but the order of the trial court overruling said motion recites: "And the court having heard the said motion and the evidence thereon submitted, is of the opinion that the same should be overruled." In the absence of a bill of exception bringing forward the evidence heard by the court, or the presence in the record of some duly certified statement of facts heard by the court when the motion for new trial was brought before him, this court has uniformly held it will not consider complaint of the action of the court. Humphries v. State, 79 Tex.Crim. Rep., 186 S.W. 332; Reyes v. State, 81 Tex.Crim. Rep., 196 S.W. 532; Odom v. State, 82 Tex.Crim. Rep., 200 S.W. 833; Mitchell v. State,85 Tex. Crim. 25, 209 S.W. 743; Slade v. State,85 Tex. Crim. 358, 212 S.W. 661; Parroccini v. State,90 Tex. Crim. 320, 234 S.W. 671; Wharton v. State,91 Tex. Crim. 575, 240 S.W. 310; Jaramillo v. State,93 Tex. Crim. 121, 245 S.W. 926; Rabon v. State, 94 Tex. Crim. 393,251 S.W. 806; Hughey v. State, 98 Tex. Crim. 413,265 S.W. 1047; Jasper v. State, 98 Tex. Crim. 521,266 S.W. 508; Crouchette v. State, 99 Tex. Crim. 572,271 S.W. 99.

The only other issue submitted in the motion is that we erred in holding there was no variance between the allegation in the indictment and the proof. Upon the authorities cited in our original opinion we were clearly right in declining to sustain this proposition.

The motion for rehearing will be overruled.

Overruled.