Henry v. State

Conviction is for rape upon a girl under the age of consent, punishment assessed being five years' confinement in the penitentiary.

We regret that the statement of facts is in such condition as to preclude consideration. It is entirely in question and answer form. Prior to the amendment of Art. 760, C. C. P., in 1931, this court had held that a statement of facts should be in narrative form, but some confusion had arisen because of the law with reference to statement of facts in civil cases. At the first called session of the 42nd Legislature, page 75, chapter 34, section 1, of Art. 760 was amended to read as follows: "Where the defendant in a criminal case appeals, he is entitled to a statement of facts certified by the trial judge and sent up with the record; provided that said statement of facts shall be in narrative form." See Phillips v. State, 125 Tex. Crim. 578, 69 S.W.2d 415; Koester v. State, 126 Tex. Crim. 261,71 S.W.2d 272; Worbes v. State, 126 Tex. Crim. 379,71 S.W.2d 872; Chinske v. State, 126 Tex. Crim. 326,71 S.W.2d 874; Adams v. State, 126 Tex. Crim. 318,72 S.W.2d 248.

One of the grounds upon which appellant sought a new trial was newly discovered evidence from two named witnesses. It is extremely doubtful if the diligence used to discover the testimony of one of the witnesses was sufficient. However, we do not discuss such point at length for the court in qualifying the bill refers us to the entire statement of facts, and the latter being in such condition that we can not consider it, this court is without means to determine whether the trial court was in error in overruling the motion for new trial. See Henderson v. State, 125 Tex.Crim. Rep.,67 S.W.2d 266.

The judgment is affirmed.

Affirmed.

GRAVES, J., absent.

ON MOTION FOR REHEARING.