Opinion
No. 20846.
Delivered March 20, 1940. Rehearing Denied April 17, 1940.
1. — Appeal — Statement of Facts.
A purported statement of facts incorporated in the transcript was not subject to consideration on appeal by Court of Criminal Appeals, where it was not approved by the trial judge and was not shown to have been filed in the trial court.
ON MOTION FOR REHEARING.2. — Appeal — Statement of Facts — Statement of Defendant's Counsel.
A mere statement of defendant's counsel in his brief, or in his motion for rehearing, that defendant has been deprived of a statement of facts, and is entitled, under the authorities, to have his case reversed, held insufficient to bring such matter to the attention of the Court of Criminal Appeals.
Appeal from County Court of Brown County. Hon. A. E. Nabors, Judge.
Appeal from conviction for selling whisky in a dry area; penalty, fine of $500.00.
Affirmed.
The opinion states the case.
M. E. Lawrence, of Eastland, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
It was charged by complaint and information that on April 1, 1939, in Brown County, Texas, appellant sold whisky to J. M. Rich. By proper averments it was alleged that Brown County was dry territory. It was also alleged that appellant had been convicted of an offense of like character on the 20th day of July, 1937. Upon conviction appellant's punishment was assessed at a fine of $500.00.
There is incorporated in the transcript what is denominated a statement of facts. It is not approved by the trial judge and is not shown to have ever been filed in the trial court. It is not subject to consideration.
A number of bills of exception are found in the record. As qualified no error is manifest. Some cannot be appraised in the absence of the facts.
The judgment is affirmed.
ON MOTION FOR REHEARING.
Appellant has filed a motion for rehearing and seems to take the view that he has been deprived of a statement of facts and is entitled, under the authorities, to have his case reversed. There is found within the papers a statement of facts which does not show to have been filed in the case and was not approved by the judge. Counsel may be correct as a matter of fact but there is nothing in the record to bring that to the attention of this court. It cannot be done by the mere statement of counsel in his brief nor in his motion for rehearing.
We find nothing before us for consideration, and accordingly, the motion for rehearing is overruled.