In the motion for rehearing filed by counsel for appellant the contention is advanced that the bill of exception relating to the motion for new trial on the ground of newly discovered evidence should be considered by this court without reference to the statement of facts which is in question and answer form. The authorities are unanimous to the effect that the bills of exception appearing in the record cannot be considered by the reviewing court in the absence of the statement of facts. See Art. 760, Vernon's Ann. Tex. C. C. P., Vol. 3, also 1937 Cumulative Annual Pocket Part, same volume, p. 36, note 17. The rule is also well settled that in the absence of the evidence adduced upon the trial, the appellate court is unable to determine the relevancy and materiality of the matters set up in the motion for new trial. See Tex. Jur., Vol. 4, p. 243, sec. 173.
The motion for rehearing is overruled.
Overruled. *Page 437