Parker v. State , 63 Tex. Crim. 464 ( 1911 )

Appellant was indicted, tried and convicted of burglary and his penalty fixed at three years confinement in the penitentiary.

The cause was tried on September 26, 1910, and the court adjourned for the term on October 10, 1910. The record shows that the court allowed thirty days after the adjournment of court for the filing of bills of exception and statement of facts. The bills of exception and statement of facts, however, were not filed until seventeen days after the expiration of the time allowed. So that we can not consider them.

In the absence of a statement of facts, we can not consider the first to eighth grounds of the motion for new trial, inclusive, and the tenth and eleventh grounds thereof.

There is but one bill of exceptions, which also shows to have been filed too late, but in addition thereto, while it complains of the admission of the testimony of a certain witness, the bill does not show what that testimony was. So that even if it had been filed in time, it would be wholly insufficient to authorize this court to consider it.

The ninth ground of the motion for new trial complains of a portion of the charge of the court on circumstantial evidence. An examination of this charge and the complaint made shows that the portion complained of is as follows: "And unless they (the jury) do so, beyond a reasonable doubt, you will find the defendant not guilty," is in appellant's favor instead of against him and no error is shown.

The twelfth and thirteenth grounds of the motion attempt to set up as a ground for new trial that the appellant has discovered new evidence. No diligence whatever is shown why this was not earlier discovered and none shown attempting to discover it. Besides, there are no affidavits of the purported additional witnesses showing what their testimony will be. Hence, the court did not err in not granting a new trial on that ground.

The last complaint of the motion for new trial is as to the action of the jury. This is not presented by bill of exceptions and hence can not be considered.

There being no error in the judgment, it is, in all things, affirmed.

Affirmed.