Opinion
No. 19792.
Delivered June 22, 1938. Rehearing denied October 19, 1938.
1. — Appeal — Affirmance.
Where the statement of facts did not bear the approval of the judge, nor contain the file mark of the clerk of trial court, and no complaints of the procedure had been presented by bills of exception, conviction was affirmed.
ON MOTION FOR REHEARING.2. — Rehearing — Appeal.
Where the motion for rehearing merely stated that it was due to negligence of the trial judge in failing to sign the statement of facts that defendant had been deprived of an authenticated statement of facts, and the motion failed to set forth any facts showing any negligence on the part of the trial judge which would have entitled defendant to a rehearing, especially where motion was not sworn to, and no affidavits were appended to motion in support of defendant's position, motion for rehearing was overruled.
Appeal from the County Court of Travis County. Hon. Geo. S. Matthews, Judge.
Appeal from conviction for theft; penalty, confinement in county jail for sixty days.
Affirmed.
The opinion states the case.
W. R. Smith, Jr., of Austin, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is theft, a misdemeanor; penalty assessed at confinement in the county jail for sixty days.
The statement of facts accompanying the record does not bear the approval of the judge who tried the case; nor does it contain the file mark of the clerk of the trial court. Therefore, the statement of facts can not be considered by this Court.
No complaints of the procedure have been presented by bills of exception.
The judgment is affirmed.
ON APPELLANT'S MOTION FOR REHEARING.
In his motion for rehearing appellant asserts that due to the negligence of the trial judge he has been deprived of an authenticated statement of facts. The motion fails to set forth any facts showing negligence on the part of the trial judge. It merely states that the unauthenticated statement of facts is in the record "because of the negligence of the county judge failing to sign the statement of facts." Moreover the motion is not sworn to, nor has appellant appended any affidavits thereto in support of his position that he has been deprived of a statement of facts.
Appellant's motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.