Appellant, in his motion for a rehearing, reurges the same grounds for a reversal of this cause as he did on original submission. There is no statement of facts or bills of exceptions *Page 334 in the record. Appellant, however, seeks to make a record by ex parte affidavits.
If this court, without authority of law, should permit a record to be made by affidavits, we would find ourselves in an endless state of confusion. Our Code of Criminal Procedure prescribes rules governing the preparation of appeals to this Court and these rules are to be observed and respected in the presentation of the record in this Court.
Appellant undertakes by ex parte affidavits, to show that he was not arraigned in the trial court. Art. 847, C. C. P., specifically provides, among other things, that this court shall presume that the defendant was arraigned, unless such matter was made an issue in the court below. See also Webb v. State, 55 S.W. 493; Pruitt v. State, 102 S.W.2d , 417. The record fails to show that any issue was made in the trial court with reference thereto.
He also insists that the trial court committed reversible error in failing to appoint another attorney when the attorney who had been appointed to represent him and did represent him in the trial of the case, withdrew and declined to proceed after he had prepared a motion for a new trial. Our interpretation of Art. 494, C. C. P. leads us to a different conclusion.
The court, in capital cases, is required to appoint an attorney to represent the defendant upon the trial of his case in order to secure to him a full and fair trial, but such attorney would not be required to prosecute an appeal to this Court. Nor would the trial court, in case the appointed counsel declined to render gratuitous services beyond that required in the court below, be required to appoint another attorney to prosecute the appeal of the case to this Court, unless it be shown to the satisfaction of this Court that the evidence is insufficient to establish his guilt, or that he had a meritorious defense which was ignored by the court in his instruction to the jury, or that incompetent and prejudicial evidence was admitted over his objection.
In the absence of such a showing, the presumption obtains that appellant had a fair trial and nothing could be gained by an appeal to this Court.
The 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. *Page 335