The appellant, having been convicted of manslaughter, moved the court for a new trial, which motion was by the court overruled. At a subsequent day of the term the judgment overruling the motion for a new trial was set aside, on the. ground that the accused was not personally present in court when the motion was being considered ; and, on a still later day of the term, the motion for a new trial was again considered and again overruled, and a new trial refused; at which second hearing, the record shows, the accused was present in person and by attorney.
In this action of the court we find no such error as to warrant a reversal. Whilst it was improper to hear the motion in the absence of the accused, it was not error to set the action of the court so taken aside, and again consider it in the presence of the accused. On this question see Gibson, alias Kemp, v. The State, 3 Texas Ct. App. 437.
During the progress of the trial certain testimony was *537offered by the accused, which was excluded on objection made by the county attorney ; and to the ruling the accused took a bill of exceptions. By a careful examination of the testimony excluded, so far as is shown by the bill of exceptions, and in connection with that set out in the statement of facts, we are of opinion the testimony excluded would have afforded no legal justification for the' homicide, nor could it have had any material influence upon the verdict; and its exclusion was not such an error as would have warranted the granting of a new trial or the reversal of the judgment.
One paragraph of the charge of the court is complained of specially in the assignment of errors, which sets it out as commencing: “ It may be admitted that defendant had no legal right to beat the oxen of Mr. Zander, and indeed he had not; but, if he did, it did not justify,” etc. We fail to see in this anything more than an enunciation of a legal proposition, and, when taken in connection with the whole charge, cannot be considered as calculated to mislead the jury to the prejudice of the accused. The charge confined the jury to the investigation of the subject of manslaughter, the court telling the jury at the outset that the evidence did not warrant a conviction of murder, either of the first or of the second degree ; and in this view of the case the law both of manslaughter and self-defense was correctly given in charge to the jury. The evidence did not warrant a charge on the lesser decrees.
Whilst we have not attempted a consecutive consideration of all the grounds set out in the motion for a new trial and in the assignment of errors, we have given to each of them the importance they seem to demand, without discovering any just ground to disturb the verdict and judgment of the District Court.
There was some conflict between the testimony of the witnesses for the state and those on the part .of the accused; *538but this matter was left to the jury under a proper charge. It cannot be said that the verdict is against the evidence.
We deem it not amiss to notice that in making up the transcript the clerk, whilst he shows in the face of the record the date of the filing of several papers, has omitted to sign or copy his signature to the file-mark. This should never be omitted. See “Rules of Court” for the government of clerks in preparing transcripts on appeal or writ of error. Rule 84 requires not only the noting in the margin of the name and date of each proceeding, but also the copying of the indorsements upon the back of the paper, which include the file-mark and signature of the clerk. A disregard of these rules may occasion controversy. In the present case it seems the clerk has endeavored to comply with this rule, but has failed in. the particular indicated, and which he has substantially met in certifying the record, which sufficiently identifies the different papers to demand a consideration of them. The whole indorsement, including the file-mark and the signature of the clerk thereto, should be copied in the face of the transcript, besides noting its character and date in the margin.
We are of opinion that the appellant has been fairly tried and convicted of the crime of manslaughter. The judgment rendered against him is, therefore, affirmed.
Affirmed.