Conviction is for theft of property of more than fifty dollars in value, with punishment of four years confinement in the penitentiary assessed. *Page 339
No statement of facts accompanies the record and appellant seeks a reversal of the judgment upon one issue alone. He complains in his motion for new trial that one of the jurors was related by marriage to the party from whom appellant is charged with having stolen the property; that upon inquiry of said juror on his voir dire he answered that he was not so related; that appellant only discovered the existence of such relationship after the trial. This allegation necessarily raised an issue of fact to be determined by the trial court upon the hearing of the motion. The bill of exception stating what the agreed evidence upon the hearing was filed in the court below on May 3, 1922. The term of court at which the trial occurred adjourned March 4, 1922. Appellant was granted sixty days after adjournment of court in which to prepare and file bills of exception and statement of facts, but it is insisted by the assistant attorney general that the bill presenting the matter complained of should have been filed within term time and can not be considered by us, regardless of the extension of time by the court. In Salazar v. State, 88 Tex.Crim. Rep., 225 S.W. Rep., 528, Judge Davidson, speaking for the court, says: "The authorities are harmonious and uniform to the effect that where questions of fact are raised by the motion for new trial, the evidence taken upon such ground must be perpetuated either in bills of exception or statement of facts filed during term time; that such matters can not be considered if filed in vacation."
The following authorities support the proposition announced in the foregoing case. In some of them the point is made that a different rule obtains where the matters are presented by bill of exception instead of by statement of facts; but wherever raised it has been held that the same rule controls regardless of how the matter is attempted to be brought forward, provided the motion for new trial raised an issue of fact. Wiley v. State,78 Tex. Crim. 406, 181 S.W. Rep., 728; Lucas v. State,69 Tex. Crim. 269, 155 S.W. Rep., 527; Knight v. State,64 Tex. Crim. 541, 144 S.W. Rep., 980; Bailey v. State,65 Tex. Crim. 1, 144 S.W. Rep., 996; Johnson v. State,71 Tex. Crim. 620, 160 S.W. Rep., 695; Probest v. State,60 Tex. Crim. 609, 133 S.W. Rep., 263; Black v. State,41 Tex. Crim. 185, 53 S.W. Rep., 116. The contention of the assistant attorney general must be sustained.
There being no statement of facts, and no bill of exception which we can consider, the presumption as to the legality of the conviction controls, and the judgment of the trial court must be affirmed.
Affirmed.
ON REHEARING. October 11, 1922.