The State has filed a motion for rehearing, and attaches a lot of affidavits attacking a bill of exceptions found in the record. It is unnecessary to repeat this bill of exceptions as it is fully set out and discussed in the original opinion. We are of opinion there is no such merit in the motion for rehearing as would authorize or require this court to change its ruling. The affidavits attached to the motion for new trial can not be considered. This is an appellate court and matters of the character sought to be brought in review before this court are dehors the record and not permissible. This has been the rule in Texas, and was thoroughly gone over in the opinion by Judge Harper in Pye v. State, 71 Tex.Crim. Rep.. The Pye case has been followed in several subsequent decisions, some of which have been rendered at the present term of the court.
We are of opinion that the bill of exceptions is sufficient to present the question set forth and contained in it. The bill of exceptions was presented to the judge and he refused it, stating that he did not know what the remarks of the district attorney were but that he knew the matter was not called to his attention. Based on this refusal appellant proved up his bill by bystanders. This was in accordance with the statute. It was filed within the thirty days allowed by law. There was no contest over it, and no attempt to contest it in the court below. That contest is sought to be made here by the affidavits connected with the motion for rehearing. This bill of exceptions is within the provisions of the statute, and is almost if not identically the same question decided in Johnson v. State, 42 Tex.Crim. Rep., in an opinion by Judge Brooks. See also Branch's Crim. Law, sec. 52, for other cases.
The motion for rehearing is overruled.
Overruled.