Burglary — Statement of Facts — Bills of Exception — Affidavits.
Where the motion and affidavits alleging reasons for failure to file statement of facts and bills of exception did not show any diligence why the same were not filed in time, the same cannot be considered on appeal.
BROOKS, JUDGE.
Appellant was convicted of burglary, his punishment being assessed at four years confinement in the penitentiary.
There is neither statement of facts nor bill of exceptions in the record. The indictment is good, and the charge of the court is applicable to a state of facts provable thereunder. In this condition of the record, it will follow, under the well settled rule of this court, this case must be affirmed, and it is accordingly so ordered.
Affirmed.
ON REHEARING. March 20, 1908.
BROOKS, JUDGE.
On a previous day of this court this case was affirmed with the statement that there were no bills of exception or statement of facts.
Appellant files a motion sworn to by himself, which, on its face, shows that appellant, himself, knew nothing about the facts therein stated. The district attorney and clerk file controverting affidavits showing clearly that there was no diligence used to procure bills of exception and statement of facts. We do not deem it necessary to state in detail the different insistences, but suffice it to say, as stated, the affidavits of appellant show no such diligence as authorizes a consideration of the statement of facts.
Appellant's motion for rehearing is therefore overruled.
Overruled.