Opinion
No. 16315.
Delivered December 13, 1933.
Trial — Evidence.
In the absence of a statement of the evidence that was before trial judge, appellate court is not in position to estimate the force of the complaint set up in motion for new trial as to reception of certain evidence.
Appeal from the County Court at Law No. 2, Harris County. Tried below before the Hon. Ray Scruggs, Judge.
Appeal from conviction for receiving and concealing stolen property; penalty, confinement in the county jail for sixty days.
Affirmed.
The opinion states the case.
Roy M. Hofheinz, of Houston, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Receiving and concealing stolen property is the offense; penalty assessed at confinement in the county jail for a period of sixty days.
Appellant entered a plea of not guilty and waived a jury. The evidence heard by the trial judge is not before this court for review.
There are no bills of exception.
In the motion for new trial there is complaint of the reception of certain evidence. In the absence of a statement of the evidence that was before the trial judge, this court is not in a positon to estimate the force of the complaint mentioned.
The criticism of the conviction upon the ground that the court should have instructed a verdict of not guilty is entirely out of harmony with that part of the record which shows that the appellant was tried before the court and not before a jury.
The same principle obtains with reference to that part of the motion which alleges that some of the testimony came from an accomplice witness. In the absence of a statement showing all the testimony heard upon the trial, this court cannot intelligently pass upon the complaint.
The same is true of the alleged newly discovered evidence. To appraise it, it is essential that this court be advised of the evidence that was actually heard upon the trial.
Under the circumstances, we are constrained to order an affirmance of the judgment of conviction, which is accordingly done.
Affirmed.