Appellant was indicted in the District Court of Rains County for attempting to pass a forged instrument; upon a trial he was adjudged guilty, and his punishment assessed at two *Page 245 years confinement in the State penitentiary, from which judgment he prosecutes this appeal.
1. The Assistant Attorney-General has filed a motion to strike out the statement of facts, which is copied in the record. Sections 5 and 6 of chapter 39 of the Act of the Thirty-first Legislature provide that in felony cases the statement of facts shall be prepared in duplicate, and that the original statement of facts shall be sent to this court on appeal. In a number of cases it has been held that this Act must be complied with, and the original statement of facts sent to this court, and this court will not and can not consider a statement of facts copied in the record. The motion is sustained and the statement of facts stricken out.
And in the absence of a statement of facts, if the charge is applicable to any state of facts that might be made by the testimony under the allegations of the indictment, on appeal it will be considered and assumed that the trial court submitted to the jury all the law applicable to the case. Mundine v. State,50 Tex. Crim. 93.
2. By bills of exception Nos. 1, 2, 3 and 4 appellant complains of the action of the court admitting certain testimony as to the amount of the note alleged to have been forged, and testimony describing said note. Also to fragments of a note introduced in evidence. The court qualifies the bills by stating that this testimony was admitted after witness Ivie had testified that he had destroyed a part of said note, and the pieces introduced in evidence were identified as a portion of the note alleged to have been forged. When a party accepts and files a bill of exceptions qualified by the court, he is bound by the qualification. In order to have revised on appeal the action of the trial court in modifying, changing or contradicting a defendant's bill of exception, the defendant must have objected to such action at the time, and have reserved a bill of exceptions to such alteration of his original bill. A failure to do so is tantamount to an acceptance of the bill, and estops defendant from further complaint in the matter. Blain v. State, 34 Tex. Crim. 448. If the note had been destroyed, secondary evidence would be admissible.
Finding no error in the record, the judgment is affirmed.
Affirmed.
ON REHEARING. May 3, 1911.