A re-examination of the record reveals the inaccuracy of appellant's contention in his motion for rehearing that his general exception to the charge was such as to demand consideration. *Page 310
There is found in the record a written exception to the charge, signed by the attorneys for the appellant, reciting that it was presented to the trial judge before the main charge was read to the jury. This recital, however, is not verified by the trial judge. There is no certificate from him showing that it was ever presented to him. The exception to the charge is a bill of exceptions, and requires verification by the trial judge to authorize its consideration upon appeal. Without such certificate of approval, it cannot be considered. This rule is statutory. See Vernon's Sayles' Texas Civil Statutes, Articles 2063 and 2066. It has uniformly been given effect in this court. See Hill v. State, 10 Texas Crim. App. 673, and other authorities collated in Vernon's Texas Crim. Statutes, Vol. 2, p. 554, subdivision 33.
That we cannot consider the exceptions to the charge is the subject of regret, but the law requiring the certificate of the trial judge to a bill of exceptions as a predicate for its consideration is imperative and binding alike upon the litigant and the court. In determining that there was no certificate to the bill in the instant case, this court indulges in no presumption but acts upon a patent fact and must deal with the record as it is found.
The requirement that exceptions to the court's charge and the refusal of special charges shall show that the objections were made to the special charges presented before the charge of the court was read to the jury, but gives effect to the mandate of the statute. See Article 737, Code of Crim. Proc. This construction of the statute has been made and applied with uniformity. In our opinion, it is a reasonable rule, easily complied with, and is in consonance with the general rule that bills of exceptions must manifest the error complained of. Walker v. State, 9 Texas Crim. App. 200, and cases collated in Branch's Texas Ann. Penal Code, Sec. 207.
The burden is upon the appellant to show by bills of exceptions that an error has been committed. Unless he does so, the presumption upon appeal is in favor of the correctness of the trial court. There was no error in applying these established principles to the case in hand.
Upon each of the other matters to which the motion for rehearing relates, the views of this court are expressed in the original opinion. In our judgment, a correct disposition of the case has been made.
The motion for rehearing is overruled.
Overruled.