
    VARDEMAN v. STATE.
    (No. 10774.)
    (Court of Criminal Appeals of Texas.
    March 23, 1927.)
    1. Criminal law <§=>1097(3) — Appellate court cannot appraise merits of motion for continuance without statement of facts.
    In absence of statement of facts, Court of Criminal Appeals cannot appraise merits of motion for continuance.
    2. Criminal law <§=>! 119(1) — Bills of exceptions to sheriff’s communicating with jurors held ineffective, where judge, in qualifying themy referred to jurors’ testimony not before appellate court.
    Bills of exceptions to sheriff’s misconduct in communicating with jurors held ineffective, Where judge, in qualifying bills, referred to juror’s testimony on hearing of motion for new trial and order on such motion recited that evidence was heard, but such testimony was not before appellate court.
    
      3. Criminal law <&wkey;>l 144(18) — Trial court is presumed to have correctly solved fact issue raised in motion for new trial, unless evidence is brought up for review.
    Where issue of fact is raised in motion for new trial and evidence heard, it will be presumed that trial court correctly solved issue, unless evidence is brought before Court of Criminal Appeals for review.
    4. Criminal law &wkey;>lll9(2) — Appellate court cannot determine pertinency of cross-examination, where bills of exceptions do not show facts proved on direct examination.
    Where bills of exceptions to cross-examination of defendant’s character witnesses fail to show what was proved on direct examination, Court of Criminal Appeals cannot determine Whether cross-examination was pertinent.
    5. Criminal law <&wkey;Illl(3) — Bill of exceptions to'argument embraced in exhibits, to which were attached trial judge’s statements that facts were improperly stated and all requested charges given, showed no reversible error.
    Bill of exceptions to argument of state’s counsel, embraced in exhibits presenting special charges requesting withdrawal of argument, shows no reversible error, where statements by trial judge that facts were not properly stated in bill nor approved, and that all special charges requested were given, were attached to exhibits.
    Appeal from District Court, Nacogdoches County; C. A. Hodges, Judge.
    Warner Vardeman was convicted of theft of cattle, and he appeals.
    Affirmed.
    V. E. Middlebrook, of Nacogdoches, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

Theft of cattle is the offense; punishment fixed at confinement in the penitentiary for a period of two years.

We find no statement of facts. There are a number of bills of exceptions.

There is some confusion in the numbering of the bills of exceptions. Two of them are designated as No. 1. One of these and bill No. 4 relate to the action of the court in refusing a continuance. The court qualified the bills with the statement that there was not sufficient diligence to secure the attendance of the absent witnesses, and further stated that the motion for a continuance was not considered for the reason that the affidavit was taken by the attorney for the appellant; also, that there was no probability of securing the attendance of the witnesses named by the delay. We will add that, in the absence of a statement of facts, the materiality of the alleged absent witnesses is not made clear.

Bill No. 4 relates to the action of the court in overruling the motion for new trial, based upon the refusal to continue. The trial court reiterates his statement by reference to the qualification of the other bill to the effect that there was no diligence shown, and that the motion was not properly verified. However, in the absence of a statement of facts, this court is in no position to appraise the merits of the motion for a continuance.

Bills Nos. 1 and 2, complaining of the misconduct of the sheriff in communicating with the jurors, are not effective for the reason that in qualifying the bills the judge stated' that the facts recited therein are not approved, but reference is made to the testimony of the jurors given upon the hearing of the motion for new trial. The testimony mentioned is not before this court. The order on the motion for new trial recites that evidence was heard. Where an issue of fact is raised in the motion for new trial and evidence is heard, it will be presumed that the trial court correctly solved the issue unless the evidence is brought before this court for review. See Harcrow v. State, 97 Tex. Cr. R. 274, 261 S. W. 246; Lopez v. State, 84 Tex. Cr. R. 422, 208 S. W. 167.

In bill No. 3 appellant attempts to make complaint of the jury panel. The trial court, in approving the bill, so qualified it as to render it inoperative.

We have examined bills of exceptions Nos. 5, 6, 7, 8, 9, 10, 11, and 12. These bills are largely in question and answer form. As qualified, some of them refer to the cross-examination of the appellant’s character witnesses. The bills in themselves fail to show what was proved on direct examination, and we are not in a position to determine whether the cross-examination was pertinent or not. Moreover, they relate to the introduction of testimony, and, in the absence of a statement of facts, we are not' in a position to determine whether the matters referred to in the bills were of importance or not.

Bill No. 13 refers to the argument of counsel for the state which is embraced in certain exhibits wherein counsel for the appellant presented special charges requesting the court to withdraw the argument. Attached to these exhibits is a statement by the trial judge that the facts were not properly stated in the bill and are not approved, together with the additional statement that all the special charges requested touching the argument were given. Under the circumstances, no reversible error is shown.

The judgment is affirmed. 
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