272 S.W. 464 | Tex. Crim. App. | 1925
Lead Opinion
Appellant was charged by indictment in the Criminal District Court No. 2 of Dallas County with unlawfully acquiring certain personal property in the way of dry goods belonging to C. H. Dollison, with fraudulent intent, by giving and drawing a certain check upon the Mercantile Bank Trust Company of Dallas, Texas, and convicted upon said indictment in said court on the 5th day of October, 1923, and his punishment assessed at two *260 years confinement in the penitentiary; from which conviction and judgment he has appealed to this court, and assigned errors as set out in his bills of exceptions Nos. 1 to 8, inclusive.
The appellant has not favored this court with any brief citing us to any authorities sustaining his contentions as set out in his bills.
We have carefully examined the record in this case, and find most of the bills of exception are prepared in question and answer form. Art. 846, C. C. P. explicitly declares:
"Provided, that such stenographer's report, when carried into the Statement of Facts or Bills of Exception, shall be condensed so as not to contain the questions and answers, except where in the opinion of the judge such questions and answers may be necessary in order to elucidate the fact or question involved."
Under this statute this court has repeatedly held that it can not and will not consider bills of exception in question and answer form.
We find no error in the remaining bills of exceptions.
The court's general charge, together with charge No. 2 given at the request of appellant, seem to cover all phases of this case.
Failing to find any error in the record, we affirm the judgment of the lower court.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Addendum
It is insisted that where bills of exception contain questions and answers and are approved in that form by the trial judge, the presumption should be indulged by this court that it was the opinion of the trial judge that it was necessary for the bill to show such questions and answers in order to elucidate the question involved. We think the correct rule is stated in Jetty v. State, 90 Tex.Crim. Rep., 235 S.W. Rep. 589, as follows:
"It may some time be necessary for the trial judge to direct the incorporation of questions and answers for the aid of this court, but in the first instance they should not be presented in this form."
A bill in this form should contain some expression from the trial judge informing this court that in his opinion the questions and answers were necessary to aid us in understanding the point involved, or explanatory of the manner in which it arose.
In view of the entire record, we think no error is presented calling for a reversal.
The motion for rehearing is overruled.
Overruled. *261