
    PARKER v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1911.)
    1. Criminal Haw (§§ 1092, 1099) — Appeal-Bill of Exceptions — Time of Piling.
    Bills of exceptions and statements of facts, not filed until after the time allowed by the court, cannot be considered on appeal.
    [Ed. Note. — Por other cases, see Criminal Raw, Dec. Dig. §§ 1092, 1099.]
    2. Criminal Law (§ 1091) — Appeal—Bill of Exceptions — Contents—Evidence.
    A bill of exceptions, complaining of the admission of certain testimony, cannot be considered, where it does not show what the testimony was.
    [Ed. Note. — Por other eases, see Criminal Law, Dec. Dig. § 1091.']
    S. Criminal Law (§ 1172) — Appeal—Harmless Error — Instructions Pavobable to Accused.
    Accused cannot complain on appeal of a charge which is in his favor.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 3160; Dec. Dig. § 1172.]
    4. Criminal Law (§ 939) — New Trial — Newly Discovered Evidence — Diligence.
    A new trial for newly discovered evidence is properly refused, where no diligence is shown in attempting to discover the evidence before trial.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2318-2323; Dec. Dig. § 939.]
    5. Criminal Law (§ 956) — New Trial— Newly Discovered Evidence.
    In the absence of affidavits of the purported witnesses showing what their testimony will be, a new trial for newly discovered evidence is properly denied.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2373-2391; Dec. Dig. § •956.]
    Appeal from District Court, Brazos County; J. C. Scott. Judge.
    Ed. Parker was convicted of burglary, and he appeals.
    Affirmed.
    Batte & Minkert, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Appellant was indicted, tried, and convicted of burglary, and his penalty fixed at three years confinement in the penitentiary.

The cause was tried on September 26, 1910, and the court adjourned for the term on October 10, 1910. The record shows that the court allowed 30 days after the adjournment of court for the filing of bills of exceptions and statement of facts.

The bills of exceptions and statement of facts, however, were not filed until 17 days after the expiration of the time allowed. So that we cannot consider them.

In the absence of a statement of facts, we cannot consider the first to eighth grounds of the motion for new trial, inclusive, and the tenth and eleventh grounds thereof.

There is but one bill of exceptions, which also shows to have been filed too late; but, in addition thereto, while it complains of the admission of the testimony of a certain witness, the bill does not show what that testimony was. So thai, even if it had been filed in time, it would be wholly insufficient to authorize this court to consider it.

The ninth ground of the motion for new trial complains of a portion of the charge of the court on circumstantial evidence. An examination of this charge and the complaint made shows that the portion complained of as follows: “And, unless they (the jury) do so beyond a reasonable doubt, you will find the defendant not guilty” — is in appellant's favor instead of against him, and no error is shown.

The twelfth and thirteenth grounds of the motion attempt to set up as a ground for new trial that the appellant has discovered new evidence. No diligence whatever is shown why this was not earlier discovered and none shown attempting to discover it. Besides, there are no affidavits of the purported additional witnesses showing what their testimony will be.. Hence the court did. not err in not granting a new trial on that, ground.

The last complaint of the motion for new trial is as to the action of the jury. This is not presented by bill of exception, and hence cannot be considered.

There being no error in the judgment, it is in all things affirmed.  