From Casetext: Smarter Legal Research

Burrell v. State

Court of Criminal Appeals of Texas
Dec 19, 1928
11 S.W.2d 794 (Tex. Crim. App. 1928)

Opinion

No. 12059.

Delivered December 19, 1928.

1. — Sale of Intoxicating Liquor — New Trial — Bills of Exception.

A motion for a new trial cannot be regarded as a substitute for a bill of exception, with reference to matters which can only be reviewed, when presented by way of a bill of exception. See Jones v. State, 9 S.W.2d 347 and other cases cited.

2. — Same — Continued.

Touching any question of fact raised by the motion for a 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 heard is brought forward in such manner that the facts may be made known to the reviewing court.

Appeal from the District Court of Camp County. Tried below before the Hon. R. T. Wilkinson, Judge.

Appeal from a conviction for the sale of intoxicating liquor, penalty one year in the penitentiary.

The opinion states the case.

No brief filed by appellant.

A. A. Dawson of Canton, State's Attorney, for the State.


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. 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.


Summaries of

Burrell v. State

Court of Criminal Appeals of Texas
Dec 19, 1928
11 S.W.2d 794 (Tex. Crim. App. 1928)
Case details for

Burrell v. State

Case Details

Full title:HARDY BURRELL v. THE STATE

Court:Court of Criminal Appeals of Texas

Date published: Dec 19, 1928

Citations

11 S.W.2d 794 (Tex. Crim. App. 1928)
11 S.W.2d 794

Citing Cases

Robinson v. State

Where appellant moved for a new trial on the ground of newly discovered evidence, and the order of the court…

Thompson v. State

We think this correct. See Parker v. State, 39 Tex.Crim. Rep.; Gaunce v. State, 109 Tex. Crim. 448; Burrell…