The judgment herein was reversed and remanded during the last term of the court, the *Page 442 opinion being written by Judge Morrow. In that opinion I concurred. During vacation of the court Judge Prendergast filed a lengthy dissenting opinion. He lays down the proposition that no error, or supposed error, can be urged on appeal which is not set out in the motion for new trial. To this proposition I can not give my assent under our statutes. Article 744 of the Code of Criminal Procedure reads as follows: "On the trial of any criminal action the defendant, by himself or counsel, may tender his bill of exceptions to any decision, opinion, order or charge of the court or other proceeding in the case; and the judge shall sign such bill of exceptions, under the rules prescribed in civil suits, in order that such decision, opinion, order or charge may be revised upon appeal."
Plainly, this statute gives the accused the right to reserve the provided exceptions "in order that such decision, opinion, order or charge may be revised upon appeal." It would seem all sufficiently clear from the terms of the statute that if the party properly takes such exceptions he may have the rulings of the appellate court on appeal. It is not prerequisite or essential that he bring those matters forward in a motion for new trial. The statute does not so require. The court's attention has been pointedly and specifically called to the matter not only at the time of the rulings by the court and when the exceptions are taken, but again it is called to his attention when the bills of exception are presented to him for his approval. That he may bring these matters forward in motion for new trial does not render nugatory the terms of the statute or deprive the accused of having his questions revised, if the terms of article 744, supra, have been followed. Article 844 of the Code of Criminal Procedure also prescribes that, "If a new trial be refused, a statement of facts may be drawn up and certified and accompany 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 facts certified, and sent up with the record." This does not prescribe that a motion for new trial is necessary, but expressly enacts that it is not. In that event the exceptions reserved under the terms of article 744, supra, may be revised, in connection with the statement of facts, although a motion for new trial was not filed. It is not obligatory upon the accused to file a motion for new trial. He may do so, or he may not. Whether he does or not is optional with him, and whether he does or not he is, nevertheless, entitled to have a statement of facts sent up with the record and his exceptions and matters of which he complains reviewed in the light of the testimony. It is well settled that, in the absence of a statement of facts, this court does not review, as a rule, many of the rulings of the trial court. These might be mentioned, but it is not necessary. Many of the cases cited by Judge Prendergast are not applicable to the law as it is at present. Many of the decisions cited by him go to the effect that assignments of error will not be noticed in criminal cases. Properly understood, those decisions lay down a *Page 443 correct rule. This court does not consider assignments of error as substitutes for a motion for new trial, but treats such assignments of error as unnecessary. Assignments of error can not take the place of a motion for new trial. This is the extent to which these decisions go. Under article 723, supra, before its repeal, a motion for new trial was requisite unless bills of exception were reserved to the charges asked and refused. Both, that is, bills of exception and motion for new trial, were not, under that statute, requisite or necessary. The matters might be presented either way, that is, by bills of exception or in motion for new trial. That statute only related to charges of the court given the jury, or such as were refused by the court or were omitted from the charge. The decisions referred to by Judge Prendergast mainly apply to the construction of article 723, which has been repealed. It has been understood to be the correct rule, that if exceptions to the charge, to which that article alone applied, are set out either in bills of exception, or are raised upon motion for new trial, they will be considered. It would be useless to review those decisions. Take the Ellington case, 63 Tex.Crim. Rep., as an illustration, cited in the dissenting opinion, Judge Harper, in closing that opinion, makes this statement: "We look alone to the bills of exception and the motion for new trial, and if errors are not there assigned we do not review them on appeal." The correct rule, under article 723, supra, with reference to exceptions to charges, may be stated practically as the decisions hold, that is, in order to have the benefit of the failure of the court to correctly charge the law, the convicted party must reserve an exception to the charge at the time it was given, or set it out in motion for new trial. Both were not required, for the statute expressly laid down the rule in the alternative. When that statute was repealed and the present statute enacted, it became necessary for the court to read the charge to the jury before argument is begun. The present statute changed the rule, and it is now, generally speaking, necessary to except to the charge before given the jury. It is not available on motion for new trial as under the previous statute. The alternative rule under article 723, supra, before its repeal, no longer exists. I do not now refer to fundamental error. Under the present statute it must be by exception. A motion for new trial under the present statute will have no force and effect if the party fails to object at the time the charges are given him and before being read to the jury. However, it might be added that in case of fundamental error it was the rule under article 723 that the case would be reversed when the question is first raised on appeal. Grant v. State,59 Tex. Crim. 123. The failure to file motion for new trial does not prevent this court from considering an appeal. Ex parte Firmin, 60 Tex.Crim. Rep.; Cotton v. State, 29 Tex. 186 [29 Tex. 186]; C.C.P., arts. 744 and 844. It is not now necessary to set out in the motion for new trial the errors committed by the court with reference to charges. The motion for new trial in that respect is not now available because of the terms of the recent statute. *Page 444 Article 744, supra, provides that matters reserved by bills of exception as therein provided shall be taken for the reason and for the purpose of revision by the appellate court, not for the purpose of being brought forward again in motion for new trial. The statement of facts also can be had without motion for new trial having been presented in the trial court. This emphasizes the right of the defendant to have errors, or supposed errors, to which he has reserved exceptions under the provisions of article 744, supra, revised. Statutes with reference to practice and procedure, where they redound to the benefit of the accused, are enacted to the end that the law may be fairly and legally enforced. It was never intended to give these statutes such a construction as would deprive parties of a fair legal trial. I am not discussing matters not known or discoverable before or at the time of the trial such as misconduct of the jury, newly discovered evidence, etc. I do not care to write further about it.
I concur with Judge Morrow in the disposition of the case.