This court has no way of knowing the materiality, or of estimating the probable effect, even if admissible, of what appellant may have said to the officers in his confession. Same was not in testimony. It was not set out in bill of exceptions No. 6, which complains because the defense was not allowed to ask the officers to state it. Ordinarily what was said by the defendant which was exculpatory or in his own behalf, would be deemed self-serving. We do not need to cite authorities upon the insufficiency of this bill. If we are to act favorably on complaints against fairness of trials, the bill of exceptions must be so drawn as to afford us a reason for so acting. The State not having used any part of the confession, and the bill taken to the court's refusal to allow appellant to introduce same, not showing what was said or desired, we have no option but to uphold our disposition of this matter in the original opinion.
This court has no right or power to override plain statutory requirements, nor to overturn the settled and correct interpretations heretofore placed upon the law, because we may feel regret that in a particular case a failure to comply with the requirement of the statute may appear to have worked harm to the accused. Our statutes require the verification of bystanders' bills of exception by three bystanders. In this case bystanders' bill No. 1 was verified but by two. Appellant attempts to show that he had arranged with the third bystander to swear to this bill, but that said party left the county and state and had not returned at the time this transcript was filed in this court. There is no showing that there was not other bystanders. Such being the law, no matter how diligent the effort of appellant's attorney to get the affidavit of a third bystander, if not secured, we can not consider such bill. We observe that the transcript in this case was held by the clerk of the trial court until ninety days after the overruling of the appellant's motion for new trial before filing same in this court.
We said in McCoy v. State, 2 S.W.2d 244, that in the absence of statutory declarations requiring the official court stenographers to take down other matters than those enumerated in the statute, this court would have no right to revise the exercise of the discretion of the trial court in such matter. It appears that appellant's counsel asked the trial court to have the stenographer take down the argument of the State's attorney. This bill is qualified by the trial *Page 500 court by the statement that when the request was made the court asked appellant's counsel to see him later about it and that this was not done. If the trial court had peremptorily refused, we would have been powerless to review his action in the premises.
We do not know of any way by which matters can be read into a record on appeal to this court which were not in the record or a part of the papers or docket entries in the court below at the time this record was made up and which were left out. This court can not grant a writ of certiorari for the purpose of having things written, entered or done after the expiration of the trial term, which were desired to be put into the record and have considered by us.
Being of opinion that the case was properly decided in the original opinion, the motion for rehearing will be overruled.
Overruled.