Appellant was convicted of burglary. The statement of facts was not filed within the time allowed by law. Court adjourned on the 9th of July, and the statement of facts was not approved by the district judge until the 30th, and there is nothing before the court to indicate that the failure to have the testimony filed in time arose from any fault on his part. We would observe, in passing, that this statement of facts is rather voluminous; is by questions and answers. We call attention to the act of our last Legislature in regard to preparing statement of facts on appeal to this court to avoid complications on such appeals.
There are some matters urged for reversal in regard to the charge of the court, and omissions to charge, etc., which questions cannot be reviewed in the absence of the evidence. Where errors of commission or omission in regard to the court's charge are urged, in the absence of the evidence this court will not review unless the supposed error was of that character and degree which would be detrimental to appellant's case and not authorized by any state of facts provable under the allegations of the indictment. These errors are not of that character, as we view them.
The charge on circumstantial evidence is criticised, but the same we think has been settled adversely to appellant in Smith v. State, 35 Tex.Crim. Rep..
The exception reserved to the argument of counsel, as explained by the court, shows no such error as would require a reversal.
In regard to the argument of private prosecuting counsel, Mr. Maynard, the court qualifies this bill by stating that the matters commented on by counsel were introduced in evidence. The bill of exception reserved to the argument of the district attorney is qualified by the court, in which it is stated Mr. Jones withdrew all the comment from the jury and the court instructed them to disregard it. We believe the comments were not of that serious character, in the face of this qualification of the bill, that would require a review.
As the record is presented to us, we find no such matters as require a reversal of the judgment and it is therefore affirmed.
Affirmed.
Henderson, Judge, absent.
ON REHEARING. December 4, 1907.