
    CALDWELL v. STATE.
    (No. 8848.)
    (Court of Criminal Appeals of Texas.
    April 15, 1925.
    Rehearing Denied May 20, 1925.)
    I.Criminal law <§=»I090(7), 1118 — Denial of continuance not reviewable in absence of statement of facts, bill of exception, and evidence.
    ■ Error in overruling application for continuance cannot be reviewed in absence of statement of facts and bill of exception thereto, and in any event cannot be intelligently passed upon in absence of evidence.
    2. Criminal law <§=>295 — Burden on defendant to sustain plea of former conviction only by . preponderance of evidence.
    In prosecution for manslaughter, burden was on defendant to sustain his plea of former conviction only by a preponderance of the evidence.
    3. Criminal law <§=>778(5) — Charge held not erroneous as causing jury to infer that defendant was required to establish truth of plea of former conviction beyond reasonable doubt.
    In a prosecution for manslaughter, charge that burden was on defendant to sustain his plea of former conviction held not erroneous as causing jury to infer that defendant’ was required to establish truth of such plea beyond a reasonable doubt.
    4. Criminal law <§=>l (86(4) — Appellate court unauthorized to reverse conviction, assuming that charge was inaccurate.
    In prosecution for manslaughter, assuming that charge placing burden on defendant to sustain plea of former conviction was inaccurate, court was not authorized, in view of Code Cr. Proe. drt.. 743, to reverse judgment, where it did not appear from record that such inaccuracy was calculated to injure defendant’s rights.
    5. Criminal law <§==31184 — Sentence In prosecution for manslaughter would foe reformed in accordance with indeterminate sentence law.
    Sentence of defendant to confinement to penitentiary in prosecution for manslaughter for a term of not less than five, nor more than five years, would be reformed in accordance with indeterminate sentence law to confinement in penitentiary for not less than two nor more than five years.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.'
    Arlington Caldwell was convicted of manslaughter, and he appeals.
    Reformed as to sentence, and affirmed.
    June C. Harris, of Austin, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

.Defendant is under conviction for manslaughter based upon the killing of his wife, Ida Caldwell, and his punishment fixed at five years’ confinement in the penitentiary.

The record is before us without a statement of facts. No bill of exception appears save that to the charge of the court. In this condition of the record we cannot review the question arising in overruling defendant’s application for continuance. Even had there been exception reserved to the ruling, we would not be able to pass intelligently upon it in the absence of the evidence.

Defendant interposed a plea of former conviction alleging that he had theretofore been convicted for killing John Martin, and that the killing of Martin was one and the same transaction, act, and volition which resulted in the death of Ida Oaldwell. The court submitted defendant’s plea to the jury, telling them, if they believed the transaction and facts happening at the time defendant killed his wife were the same transaction and facts upon which he was tried and convicted for killing Martin, that they would find his plea of former conviction true. The court further told them the burden was upon defendant to show that he was the same person tried in the cause for killing Martin, and that' the transaction and facts were the same in the present case as in that case. This charge was excepted to, because the court failed to tell the jury that the burden necessary for defendant to discharge was to establish by a “preponderance of the evidence” that he had been convicted of the same offense. Objection was also made that the charge as given left the matter uncertain, in that the jury would infer from the charge as given, that defendant would be required to show “beyond a reasonable doubt” that the two killings constituted but one offense.

We think the court should have amended his charge so the jury might have been advised that the burden resting upon defendant under the circumstances was only to establish the truth of his plea of former conviction by a preponderance of the evidence. This seems to be the rule long established in this state. Davidson v. State, 40 Tex. Cr. R. 285, 49 S. W. 372, 50 S. W. 365; Willis v. State, 24 Tex., App. 586, 6 S. W. 857; Benton v. State, 52 Tex. Cr. R. 422, 107 S. W. 837. Other cases upon the point will be found collated in paragraph 11 under section 630, Branch’s Ann. P. C. However, we are not inclined to agree with the contention that the charge as written would cause the jury to infer that defendant was required to establish the truth of his plea beyond a reasonable doubt. Conceding that the charge excepted to was not accurate in the respect complained of, yet we are forbidden by the provisions of article 743 of our Code of Criminal Procedure to reverse a judgment where such an error occurs, unless it appear from the record that the same was calculated, to injure the rights of the defendant. Without knowledge of the facts proven upon the trial.manifestly we are not in a position to say the error was calculated to injure defendant. The evidence may have been overwhelming against the , truth of the plea. In .the absence from the record of the facts proved we must uphold the judgment because we cannot ignore the mandatory provisions of article 743, supra.

The judgment of conviction as we find it in the transcript condemns defendant to confinement in the penitentiary “for a term of not less than five nor' more than five years”; thereby denying to him the benefit of the indeterminate sentence.' The judgment will be so reformed as to condemn him to confinement in the penitentiary for a term of not less than two nor more than five years, and as so reformed the judgment is affirmed. 
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