In this case appellant was convicted of murder in the District Court of Potter County and his punishment fixed at fifteen years in the penitentiary.
An inception of this record shows that this cause was tried in court below before the Hon. Hugh L. Umphres, Judge, and all the orders on motions, bills of exceptions, etc., are signed by him, as well as the charge. We find in the record what purports to be a statement of facts signed by counsel for appellant and apparently by the district attorney and certified as correct by Henry S. Bishop, Judge of the District Court of Potter County, Texas. Under what appears to be an unbroken line of decisions of this court, we are not at liberty to consider a statement of facts so authenticated. It is uniformly held that a statement of facts must be approved by the judge before when the case was tried. Graham v. State, 10 *Page 531 Texas Crim. App., 684; Richardson v. State, 71 Tex. Crim. 111, Porter v. State, 72 Tex.Crim. Rep..
Appellant reserved four bills of exceptions none of which present error which we can consider in the present condition of the record. Three of the bills of exceptions are to matters left out of the court's charge or the refusal of the court to give a special charge instructing the jury to return a verdict of not guilty; these matters we cannot decide in the absence of a statement of facts.
We have examined the appellant's motion for new trial and find that his first ground of complaint is that the second count in the indictment upon which the State elected to prosecute, is defective in that it lacks the formal heading, and matters necessary to make the same legal. This question is well settled against appellant's contention, as the formal parts pertaining to the first count, when such count is abandoned will apply to the second count.
The claim of newly discovered evidence set up in the motion, is not properly sustained by affidavits or evidence before the trial court. The ground that the trial court erred in refusing special charges raises matters which cannot be reviewed in the absence of a statement of facts. Nor can the objection that the judgment is contrary to the evidence be reviewed for the same reason.
Finding no error in the record, the judgment of the lower court is affirmed.
Affirmed.
ON REHEARING, May 28, 1919.