Probest v. State

In this case appellant was convicted in the District Court of Hamilton County, on March 17, 1910, on a charge of theft, and his punishment assessed at confinement in the penitentiary for a period of two years.

1. The facts in the case are identical in effect with those fully recited in the opinion this day delivered by Judge McCord in the case of Bowen v. State, and it would be useless to here restate them. Again, the questions, except the one we shall hereafter discuss, raised on this appeal are identical with the questions there raised, discussed and decided, and for the most part they do not need to be noticed.

2. Among other grounds in the motion for new trial relied upon by appellant was the action of the jury in referring to and discussing his failure to testify. This matter was investigated by the court who heard the testimony touching same at length. The testimony in reference to this matter was filed in the court below on May 12, 1910. The term of court at which appellant was convicted adjourned on the 13th day of April, 1910. Since the decision of this court in the case of Black v. State,41 Tex. Crim. 185, it has been uniformly held that the provisions of our statutes, both civil and criminal, with regard to the preparation and filing of statement of facts for appeal, have reference only and exclusively to a state of facts adduced upon the merits of the case before the jury or the court, as the case may be, and that our statutes have no reference to issues of fact formed on grounds set up in motion for new trial, and that the facts as to such issues, in order to be entitled to consideration on appeal, must have been filed during the term. This rule has since been followed by this court in many cases. Mikel v. State, 43 Tex.Crim. Rep.; Tarleton v. State, 62 S.W. Rep., 748; Reinhard v. State, 52 Tex.Crim. Rep.; Jarrett v. State,55 Tex. Crim. 550; Williams v. State, 56 Tex. Crim. 225. It is clear, therefore, under this rule that this ground of appellant's motion is not, in this state of the record, available in this court.

It should be further stated that the identification of appellant in this case was far more satisfactory and conclusive than in the Bowen case. Indeed, considering all the facts in the case, there is, in our minds, no doubt as to the satisfactory identification of appellant.

The judgment of conviction is in all things affirmed.

Affirmed.

ON REHEARING. December 21, 1910.