Opinion
No. 4031.
Decided October 21, 1908.
Murder — Statement of Fact — Charge of Court — Practice of Appeal.
Where upon appeal from conviction of murder assessing the death penalty, there was no statement of facts in the record, complaints of the charge of the court could not be reviewed. Following Holloway v. State, 110 S.W. Rep., 745.
Appeal from the District Court of Bastrop. Tried below before the Hon. Ed. R. Sinks.
Appeal from a conviction of murder in the first degree; penalty, death.
The opinion states the case.
Robert A. Brooks, for appellant.
F.J. McCord, Assistant Attorney-General, for the State.
The appellant was charged by indictment in the District Court of Bastrop County with the offense of murder. He was put upon his trial in July, 1908, in said court and was by the jury convicted and his punishment assessed at death.
The record discloses that preliminary to the main trial there was some suggestion made that appellant was insane, which issue was tried in said court in advance of the main trial, resulting in the return of a verdict by the jury that the appellant was then sane. There is no statement of facts in the record, notwithstanding thirty days after adjournment was allowed within which to file a statement of facts.
We have carefully examined the charge of the court and so far as we can tell, in the absence of a statement of facts, it is unobjectionable. The only instruction requested by appellant's counsel was given by the court. There are some complaints of the charge of the court made, but it is well settled that in the absence of a statement of facts we can not ordinarily, at least, review assignments questioning the sufficiency and correctness of the charge of the court. Holloway v. State, 110 S.W. Rep., 745, and authorities there cited. It is a matter of regret that in a case with the assessment of the death penalty that we are not aided by a statement of facts. None, however, was filed, nor was any excuse or reason given why it was not done.
As presented to us, notwithstanding the awful penalty imposed upon appellant, we are without discretion in the matter and the judgment of the court below must be affirmed, and it is so ordered.
Affirmed.