Davis v. State , 40 Tex. 478 ( 1874 )

Roberts, Chief Justice.

In this case the defendant was tried and convicted for theft of a gelding; his punishment was assessed at ten years confinement to labor in the penitentiary; judgment was rendered, a motion for new trial was overruled, and . notice of appeal was given. There is no statement of facts in the record. .

It is contended by counsel for the defendant that the court erred in refusing to entertain, and also in overruling, his application for a continuance — in refusing to amend the recital of the judgment so as to show that the defendant did not announce himself ready for trial.

There is no bill of exceptions taken to the action of the court in reference to these matters. The attorney below filed a protest, which was not signed by the judge. It is unnecessary, therefore, to consider further these assignments of error, they not being presented on the record in such manner as will enable this court to pass upon them. Counsel desiring such matters to be revised by this court must not only except to the action of the court, but make their exceptions appear upon the record by a bill of exceptions, as it has been repeatedly decided by this court.

Another ground of error assigned is that the court erred in not granting a new trial on the ground presented under oath of the defendant of newly - discovered evidence. The affidavit of the witness to the facts was not procured and produced, and no explanation was made-why it was not done ; and had it been produced, we cannot decide as to its importance, or as to whether or not it was merely cumulative, inasmuch as there is no statement of facts in the transcript of the record; and therefore we cannot say that it was error in the court below to-overrule the motion for a new trial on that ground.

Whatever may have been the irregularities or errors in the proceedings upon the trial, so earnestly complained of by counsel, they are not so presented as to enable this court to revise them.

Affirmed..