Canova v. State

*256on state’s motion for rehearing.

GRAVES, Judge.

The State suggests that the statement of facts developed upon the motion for a new trial is wholly in question and answer form contrary to the provisions of Art. 760, C. C. P. Upon an examination thereof, we find the statement of facts to evidence that the testimony developed upon the trial hereof consists of 48 pages presented in narrative form, after which there follows 124 pages of a statement of facts produced on the motion for a new trial which is wholly in question and answer form. This is contrary to the provisions of Art. 760, C. C. P. However, it appears from the certificate of the court reporter that the trial court ordered such facts produced upon the motion for a new trial to be brought forward in question and answer form; and the full statement bears not only the approval of the trial judge, but he also entered an order which appears in the record requiring all the testimony produced on the motion for a new trial to be presented to this court in question and answer form. The trial judge has no power under the statute to order a statement of facts to be prepared for presentation to this court in question and answer form. See Newsom v. State, 145 Tex. Cr. R. 473, 169 S. W. (2d) 195, and many cases cited on page 196. Therefore, the statement of facts on the motion for a new trial is stricken from the record.

The matter relative to the misconduct of the county attorney which appears in such stricken statement should be condemned as not being conductive to upholding the dignity of our courts, and he should have been reprimanded therefor; nevertheless, it is shown from the attempted bill of exception that no objection or exception was taken thereto. Therefore, the facts presented to us concerning such matter cannot be considered.

We think the original opinion was correct in its disposition of all matters except that in the above-questioned Bill No. 8, which is the last complaint discussed in our original opinion relative to the conduct of the County Attorney, and we are now convinced that we were in error in our disposition thereof. Thus believing, the State’s motion for a rehearing is granted, the reversal hereof is set aside, and the judgment of the trial court is now affirmed.