"In the absence of a statement of facts, only fundamental errors will be revised. Every presumption will be in favor of the regularity of the conviction, the charge of the court, and of the sufficiency of the evidence."
The above quotation is from Branch's Ann. Tex. P. C., Sec. 602. It is based upon numerous decisions of this court which are collated therein. See Pilgrim v. State, 87 Tex.Crim. R., Texas Jurisprudence, Vol. 4, Secs. 167 and 168. Exceptions to this rule are rare and grow out of the peculiar facts in given cases. See Denton v. State, 42 Tex.Crim. R., and other cases collated by Mr. Branch in the section to which reference is made above.
It is the appellant's position in the present instance that his premises were searched by an officer who gave criminating testimony against the accused, obtained through a search, not shown to have been made under a valid search warrant supported by a sufficient affidavit. It is a rule of law often applied that the reception of improper evidence will not necessarily require or authorize a reversal of the conviction. See McWilliams v. State, 44 Tex. 116; Saddler v. State, 20 Tex. Cr. App. 195; Kelsey v. State, 4 S.W.2d 548; and precedents therein cited. See also Bonilla v. State, 2 S.W.2d 248; McLaughlin v. State, 4 S.W.2d 54; Upton v. State, 20 S.W.2d 794; Machado v. State, 17 S.W.2d 1060. Therefore, whether the reception of improper evidence in a given case will require a reversal ordinarily cannot be determined upon appeal in the absence of knowledge by statement of facts in the ordinary way or by such statement in the bill of exceptions as would make known to the court on appeal the substance of all the evidence that was before the trial court. In the present instance the bill of exceptions does not comply with the rule last above mentioned. It follows, therefore, that even though it be true that the result of the search was improperly proved, the presumption must be indulged that there was before the trial court proof which rendered the supposed error harmless. We will state, however, as was intimated in the original opinion, that there is such conflict between the bill as prepared by the appellant and the explanation thereof made by the trial judge as makes it uncertain whether in receiving the evidence in question there was error committed or not.
The motion for rehearing is overruled.
Overruled. *Page 482
ON APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.