The application for continuance was to obtain testimony for the purpose of impeaching a witness whom it was anticipated the State would introduce on the trial. It was defective in that it failed in two important statutory requirements, to wit: it did not allege “ that the witnesses are not absent by the procurement or consent of
But, if the application had been sufficient, it does not appear how the bill of exceptions reserved to the action of the court in overruling it could be made available, since there is no statement of facts that can be considered by us. What purports to be a statement of the facts is not signed or certified by the judge. The rule is well settled that a document purporting to be a statement of facts, and signed as such by the attorneys, but not signed nor approved by the judge, constitutes no part of the record; and in this court the case stands as though there had been no effort to make, the statement. The signature of the judge is indispensable. Brooks v. The State, 2 Texas Ct. App. 1; Lawrence v. The State, 7 Texas Ct. App. 192.
When there is no statement of facts, a bill of exception's having relation to the evidence must, in order to be available, state the entire facts, or so much thereof as would be necessary to a complete understanding of the nature, character, and bearing of the matter complained of. In other words, it should be full enough to supersede the necessity of resorting to other sources for facts or information, and avoid all necessity for inference or intendment. Cordova v. The State, 6 Texas Ct. App. 445. Now take the case before us, in which there is no statement of facts. How, under such circumstances, are we to know that the anticipated witness, whom it was sought to impeach, did indeed appear subsequently at the trial and testily in the case? If she did not, then the bill of exceptions is without foundation to rest upon ; if she did, then that fact has not been shown. In such a state of uncertainty, how could any action of this court in determining the materiality of the evidence sought be intelligibly and satisfactorily taken? Under the circumstances it would be impossible to say whether the court erred or not, and the rule is well established' that, where it is not made to appear affirmatively
These rules apply with almost equal force, ordinarily, to bills of exception reserved to the refusal of the court to give in charge to the jury special instructions requested. If the instruction is predicated upon any particular phase of, or deduction to be drawn from the evidence, how can it be ascertained whether the court erred or not,, when the evidence is not exhibited by a statement of facts? Booker v. The State, 3 Texas Ct. App. 227. And exceptions to the charge given can rarely'present questions for revision, so far as the same is applicable to the testimony, without a statement of the facts. Carter v. The State, 5 Texas Ct. App. 458.
Without a statement of facts, as has been repeatedly decided, and so often that it is not necessary to cite authorities, the action of this court on appeal will be limited, ordinarily, to an ascertainment of the validity of the indictment and the legality of the charge to any state of case which might legitimately arise under the indictment.
Looking to the indictment in this case, we find it good in every respect, and amply sufficient to charge burglary with intent to commit theft.. Looking to the charge, we find that it presents fully the law applicable to burglary with intent to steal.
The judgment is affirmed.
Affirmed.