Riley v. State

The conviction is for murder; punishment fixed at confinement in the penitentiary for a period of twenty-five years.

The document found in the record denominated a statement of facts is without the approval of the trial judge. Authentication of the statement of facts by the judge who presides at the trial is essential to authorize its consideration on appeal. The statute requires this and many cases in point are found in Vernon's Texas Crim. Stat., Vol. 2, page 819, note 22.

There are several bills of exceptions, one of which relates to the overruling of the second application for a continuance. The others relate to the ruling of the court upon the admission of evidence.

As qualified by the trial judge, the bill of exceptions complaining of the refusal to continue the case reveals no error. It relates to absent testimony, which in the opinion of the trial judge, was not probably true and would have produced no different results. The motion for new trial is not supported by the affidavit of the absent witness, and the court in overruling the motion, was within its discretion. Moreover, the law contemplates that an application for a continuance and the action of the court thereon shall be appraised in the light of the evidence adduced upon the trial. There being no evidence upon this appeal, it is obviously impossible for this court to weight it, and in this condition of the record, the presumption prevails that in exercising his discretion in overruling the motion, the trial judge was guilty of no abuse. See Vernon's Tex.Crim. Stat., Vol. 2, p. 319, note 34, and cases collated.

In the absence of a statement of facts, the complaint in the bills of exception to the ruling of the court in the admission of evidence cannot be valued. Their relevancy and materiality would obviously depend upon the facts adduced upon the trial. The presumption is in favor of the correctness of the ruling of the court. See Vernon's Texas Crim. Stat., pages 889, 897, 892 and 893; also Johnson v. State, 14 Texas Crim. App., 310; English v. State, 4 Tex. 125. This presumption will prevail unless by the record it is overcome. The bills of exception of themselves do not show that the rulings made by the court were erroneous. In the absence of the statement of facts, we cannot measure the importance of or the relevancy of the evidence which was before the trial court at the time he made the rulings and overruled the motion for new trial.

The record presents no error. The judgment is therefore affirmed.

Affirmed.

ON REHEARING. October 31, 1923.