Opinion
No. 24240.
January 26, 1949.
1. — Statement of Facts — Not Approved — Not Agreed To.
A statement of facts, which is not approved by the trial judge and not agreed to by the attorneys for the state and the defense, cannot be considered.
2. — Statement of Facts — Motion for New Trial — Must Be Narrative.
The statute does not authorize the trial judge to certify that a statement of facts, on a motion for a new trial, is necessary to be in question and answer form.
3. — Bills of Exception — Statement of Facts — Necessary — Appraisement.
Bills of exception cannot be appraised in the absence of a statement of facts.
Burglary (with a charge of repetition of offenses). Appeal from Criminal District Court No. 2 of Tarrant County; penalty, confinement in the penitentiary for life.
Hon. David McGee, Judge Presiding.
Affirmed.
No attorney of record on appeal for appellant.
Ernest S. Goens, State's Attorney, Austin, for the state.
The appeal is from a conviction for burglary, with a charge of repetition of offenses, and a sentence in the penitentiary for life.
The statement of facts in the case is not approved by the trial judge. It is not even agreed to by the state's attorney or by the defense attorney. Consequently, it is not in position to be considered by this court.
A statement of facts on a motion for new trial appears in the record and, while it is signed by the trial judge, it is not a narrative statement as required by law. The judge has certified that it is necessary to have it in question and answer form. We have frequently held, and repeatedly in recent months, that the trial judge has no such power. The statute does give him the right to make such certificate regarding bills of exception. If the attorneys or the judge had taken the trouble to look at the plain provisions of the statute this would likely not have come to the court in its present shape. We are not authorized to consider it, under the statutory provision.
Bill of Exception No. 1 attempts to bring a complaint which we are unable to appraise in the absence of a statement of facts. Furthermore, the court's qualification of the bill, which was accepted by appellant, removes any apparent error.
Bill of Exception No. 2, as qualified by the court, shows no error.
We are unable to consider the complaint in Bill of Exception No. 3 in the absence of statement of facts.
Bill of Exception No. 4, in several respects, falls short of meeting the requirements of law in the preparation of bills of exception.
Bill of Exception No. 5 is in question and answer form and does not contain a certificate of the judge authorizing its consideration. In fact, said bill does not show to have been either approved or rejected by the court, if it could in other respects be considered a bill of exception. The same is true of each and every bill in the record.
Finding no reversible error, the judgment of the trial court is affirmed.