There was in this case no motion for a new trial, and the question arises, can the action of the district court be reversed without such motion?
It was said in Foster v. Smith, 1 Tex., 72, that “no judgment ought to be reversed in this court merely on the ground that the verdict was not supported by the testimony, unless a motion had been made in the court where the verdict was rendered for a new trial and overruled, and then the evidence and the grounds on which the new trial had been asked should be fully spread upon the record.” The rule announced in this case, it is believed, has been observed to the present time, and it is not intended now to question its correctness in civil causes. It is believed, however, that the Code of Criminal Procedure has prescribed a different rule for the hearing of appeals in criminal cases. By article 673, O. & W. Dig., Code of Criminal Procedure, it is proved that, “if a new trial be refused, a statement of facts may be drawn up and certified and placed in the record, as in civil suits. Where the defendant has failed to move for a new trial, he is nevertheless entitled, if he appeals, to have a statement of the facts certified and sent up with the record.”
It is not perceived for what purpose the facts shall be sent up with the record, unless it be to enable this court to revise the action of the jury, and that the citizen shall not be held subject to legal penalties, if the evidence does not show that he has violated the law. If in fact the *188accused is not guilty, and judgment is wrongfully entered against Mm, he ought not to be deprived of the power of correcting the error, whatever may have induced the legislature to enact the law relaxing the rule or prescribing a rule in criminal cases. The law having been enacted, the court must observe it.
The evidence in this case is insufficient to sustain the judgment. It does not appear from the evidence at what time the defendant played at cards, whether before or after indictment found. The charge must be sustained by proof of a playing before the indictment was found, and not so long before the finding as to be barred by limitation. It does not appear from the record that such proof was made in this case. The evidence is insufficient to. sustain the verdict. The judgment is reversed, and the cause
Remanded.