We can not consider the record in this case. No judgment appears therein. Estes v. State, 38 Tex.Crim. Rep.; Coleman v. State, 28 S.W. Rep., 951. There is no showing that the case was tried before a jury, or that there was arraignment or plea. Marks v. State, 10 Texas Crim. App., 334. Article 938, C.C.P., requires us to presume that when a jury is impaneled and sworn, same was properly done in the absence of a showing to the contrary, but we know of no authority authorizing us to presume that a case was tried before a jury when the record does not affirmatively show this fact. The transcript herein is made up of two parties, — twenty-six pages of which seem to have been filed in Taylor county, Texas, and the remainder in Callahan county. There is nothing about that part which was apparently filed in Taylor county to indicate that it ever was filed in Callahan county, after a change of venue was ordered. The same indictment is certified to have been returned by two grand juries, one impaneled in Taylor county in April, 1921, and the other in Callahan county in October, 1922. The indictment filed in the latter county is the only document in the second portion of transcript which is accompanied by file mark. Neither the purported charge of the court nor the motion for new trial are dated or filed. In Harvey v. State, 57 Tex.Crim. Rep., this court held it would not consider a motion for new trial which did not appear to have been filed. There is no order upon appellant's motion for a new trial and no notice of appeal. The order extending the time for filing statement of facts and bills of exception is not dated.
The appeal must be dismissed. We have no wish to be critical, but there are many papers in this record wholly unnecessary, such as copies of orders for special venires, capiases, repetition of recognizances, the insertion of which adds to the cost and serves no useful purpose. In case it be found that this record can be corrected, we respectfully suggest *Page 189 that only those things be placed therein which are necessary to bring the case properly before this court.
The appeal must be dismissed.
Dismissed.