Opinion
No. 21340.
Delivered January 8, 1941.
1. — Charge — Objections.
Where no statement of facts or bills of exception were incorporated in the record, objections to trial court's instructions and refusal of special charges could not be considered.
2. — New Trial — Affirmance.
Where defendant set up in his motion for new trial misconduct, of the jury, but the facts developed on the hearing of the motion, were not brought forward either in a bill of exceptions or by a separate statement of facts, and the findings of the trial judge, as recited in the order overruling the motion, were expressly against defendant on the averments in his motion, the judgment would be affirmed.
Appeal from District Court of Hardin County. Hon. Thos. B. Coe, Judge.
Appeal from conviction for rape; penalty, confinement in penitentiary for five years.
Affirmed.
The opinion states the case.
H. A. Coe, of Kountze, and Cain Cain, of Liberty, for appellant.
R. M. Briggs, District Attorney, and B. A. Coe, both of Kountze, and Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction is for rape, punishment assessed being five years in the penitentiary.
No statement of facts or bills of exception are in the record. Appellant complained of the court's charge in several particulars, and requested a number of special charges which we find were incorporated in the main charge of the court. We are in no position to appraise the objections to the court's instruction, nor to complaint of refusing any special charges in the absence of the facts. Scott v. State, 135 Tex. Crim. 324, 119 S.W.2d 884; Lloyd v. State, 114 S.W.2d 544; Stephens v. State, 136 S.W.2d 216.
Appellant set up in his motion for new trial misconduct of the jury. The facts developed on the hearing of the motion are not brought forward either in a bill of exception or by separate statement of facts. The findings of the trial judge as recited in the order overruling the motion are expressly against appellant on the averments in his motion.
The judgment is affirmed.