Lead Opinion
Conviction was for having in possession equipment for the unlawful manufacture of intoxicating liquor. Punishment, one year in penitentiary.
No statement of facts or bills of exceptions accompany the record. Judgment was rendered on March 24th, 1921. Two days later a formal motion for new trial was filed, and on the 31st day of March, an amended motion for new trial was filed, in which for the first time it is set up that no "written" charge was delivered to the jury. The fact that such omission occurred is not authenticated in any way, either by bill of exception, or by proof upon hearing of the motion for new trial. *Page 318 In this state of the record, under many authorities, we must affirm this case, because of the absence of bills of exception and statement of facts.
Affirmed.
Addendum
Upon consideration of this case originally we were inclined to the view that Article 743, Vernon's C.C.P. would control; and that a disregard of Article 735, requiring a written charge could not for the first time be raised in the motion for new trial. Upon more mature consideration we reached the conclusion that we were in error. Our opinion in No. 6455, Howard v. State,
The motion for rehearing is granted, judgment of affirmance is set aside, and for failure to give a written charge, the judgment of the trial court is reversed, and the cause remanded.
Reversed and remanded.