
    REEVES v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan 8, 1913.
    Rehearing Denied Feb. 5, 1913.)
    1. Criminal Law (§ 1122*) — Appeal—Record —Evidence.
    In the absence of the evidence in the record, the Court of Criminal Appeals cannot consider error in failing to charge on the law of simple assault in a prosecution for aggravated assault.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2940-2945; Dec. Dig. § 1122.*]
    2. Criminal Law (§ 1119*) — Appeal—Record-—Evidence— Effect of Absence.
    In the absence of the evidence in the record, the Court of Criminal Appeals cannot consider alleged statements of the prosecuting attorney outside of the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2927, 2930; Dec. Dig. § 1119.*]
    3. Criminal Law '(§ 1090*) — Appeal—Record.
    Where no bill of exceptions is reserved verifying the fact that a juror sat on a former trial of the case, and the record contains no-evidence showing such fact, error in overruling the motion for new trial on that ground cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653. 2789, 2803-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.*]
    
      ■ Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    E. L. Reeves was convicted of aggravated assault, and appeals.
    Affirmed.
    R. H. Tiernan and Geo. H. Currier, both of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of aggravated assault; his punishment being assessed at 90 days’ imprisonment in the county jail.

The record is before us without the evidence or bills of exception.

The first ground of the motion for new trial alleges that the court erred in failing to charge the jury on the law of simple assault. Eor the reason the evidence is not before us, we are unable to say that this was error.

The second ground of the motion complains of the argument of the state’s attorney. The ground alleges certain conclusions and ■statements of the prosecuting officer when, in fact, the evidence did not justify such statements and conclusion. Eor the reason that the evidence is not before us, this cannot be considered.

It is contended that one of the jurors in this case sat on the previous trial of the case. This is not presented so it can be considered, and there was no bill of exceptions reserved verifying the fact that the juror did or did not sit upon a former trial; nor was there any evidence introduced in connection with the motion for new trial showing this fact, if it was a fact — at least, if such was the case, the record does not contain it. As this matter is presented, we cannot review it.

The judgment is affirmed.  