
    Andrew Railey v. The State.
    
      No. 5188.
    
    Decided November 13, 1918.
    Theft—Charge of Court—Sufficiency of the Evidence.
    In the absence of a statement of facts, exceptions to the charge of the court and grounds of the motion for new trial, both in refusing requested instructions and in passing on the sufficiency of the evidence, can not be considered on appeal.
    Appeal from the Criminal District Court of Dallas. Tried below before the Hon. Robt. B. Seay.
    Appeal from a conviction of theft over the value of fifty dollars; penalty, two years imprisonment in the penitentiary.
    The opinion states the ease.
    No brief on file for appellant.
    
      E. B. Hendricks, Assistant Attorney General, for the State.
   DAVIDSON, Presiding Judge.

theft of property over the value of fifty dollars and allotted two years in the penitentiary.

He reserved exceptions to the charge of the court because “it deals with the innocence of John M. Fletcher when,” from defendant’s standpoint, the witness is an accomplice, and asked the court by special charge to give said charge to the jury; second, it nowhere charges the defendant’s act as being that of embezzlement, which he contends should have been done, and that the case does not make one of theft. It is contended in the motion for new trial that the evidence is not sufficient, and that the court erred in not giving requested instructions asked by defendant ; because appellant could not be convicted of theft unless he was connected with the actual taking. The exceptions to the charge of the court and grounds of the motion for new trial, both in refusing requested instructions and in passing on the sufficiency of. the evidence, need not be considered because the evidence does not accompany the record.

The judgment as the record is presented will be affirmed.

Affirmed.  