Appellant was convicted in the district court of El Paso County for the offense of assault with intent to murder and his punishment assessed at five years confinement in the penitentiary.
There are but two bills of exceptions in the record. The first complains of the action of the court in overruling appellant's motion for a new trial because of certain alleged misconduct of the jury. The record in this case shows that the court adjourned on the 4th day of April, 1924, and the Statement of Facts on the motion for new trial was not filed, according to the file mark thereon, in the district court of El Paso County until the 5th day of April, 1924, or one day after the court had adjourned. Under this state of the record the Statement of Facts can not be considered, and this court will presume that the trial court acted correctly in overruling the motion for a new trial.
By bill of exception No. 2 complaint is made of the action of the trial court in permitting the State to introduce in evidence the whole of the examining trial testimony of the witness Augustine Bustamente and the whole of the written statement made by said witness to the county attorney on the night of the shooting. The bill of exception shows that the defendant, for the purpose of impeaching said witness, offered in evidence and read to the jury certain excerpts and statements from the examining trial testimony of said witness and also from the written statement made by said witness to the county attorney on the night of the shooting. We have very carefully examined the examining trial testimony and *Page 366 the written statement introduced in evidence, and have reached the conclusion that it was entirely proper for the court to admit all of the testimony of the witness given on the examining trial and also his full statement to the county attorney, because same were germane to that portion of said testimony and said statement that was introduced in evidence by the appellant. Art. 811, Vernon's Code of Criminal Procedure, and authorities there cited.
Finding no error in the record, the judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and the conclusions announced are approved by the Court.
ON MOTION FOR REHEARING.