Emmons v. State, No. 662.

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No. 662. | Tex. Crim. App. | Jan 30, 1895

Lead Opinion

Motion is made by the Assistant Attorney-General to strike out the statement of the facts incorporated in the record, because "the same is in express violation of the rules of this court," in that it consists merely of the stenographer's notes taken on the trial, containing in full questions asked of and replies given by the witnesses on the trial in the court below. Rule 78 requires, that "neither the notes of the stenographer taken upon the trial nor a copy *100 thereof made at length shall be filed as a statement of facts; but the statement made therefrom shall be condensed throughout in accordance with the spirit of the foregoing rules upon this subject." For rules for making up the statement of facts, see Rules 72 to 78, inclusive, prescribed for the District and County Courts (84 Tex. 719); and such statements must be made up in accordance with those rules. Ratcliff v. The State, 29 Texas Crim. App., 248. By reference to the Code of Criminal Procedure, it will be seen that statements of facts are to be made up in criminal as in civil causes. Article 784 of said Procedure provides: "If a new trial be refused, a statement of facts may be drawn up and certified and placed in the record as in civil suits." When these rules have been violated in making up such statement, as in this case, this court will not consider same. Butler v. The State, 33 Tex.Crim. Rep.. The motion is granted, and the statement of facts is stricken from the record, and it is ordered accordingly.

Motion granted.

Judges all present and concurring.

ON THE MERITS.

Addendum

The appellant in this case was convicted in the County Court for the offense of unlawfully betting at a game played with dice, and his punishment assessed at a fine of $25, The statement of facts in this case has been stricken out, and we adhere to our ruling in regard thereto. There is nothing in appellant's contention contained in his bill of exceptions number 2 in regard to the panel of the jury. Article 3031, Revised Civil Statutes, settles this question against appellant. The court's charge in defining what might constitute a bet is correct. A bet may be made by acts without words. There is nothing in the remarks of the county attorney improper.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.