
    TERRY v. STATE.
    (Court of Criminal Appeals of Texas.
    April 12, 1911.)
    T. Ceiminad Law (§ 1102) — Recobd—State-' ment oe Facts.
    A statement of facts, not presented and filed in the lower court within the time prescribed by law, nor approved or passed on by the trial judge, will be stricken out by the appellate court on the motion of the state.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1102.]
    2. Homicide (§ 292) — Attempt to Kill — Indictment — Inste tjctioits.
    Where an indictment charged that accused mingled poison with coffee with the intent to injure and kill two persons named, the court could submit the question , of the intent of accused to injure and kill one of such persons.
    [Ed. Note. — For other cases, see Homicide, Dec. Dig. § 292.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Harrison Terry was convicted of crime, and he appeals.
    Affirmed.
    Wiley & Baskett, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indfexes
    
   PRENDERGAST, J.

Appellant was indicted, charged with unlawfully, willfully, and maliciously mingling strychnine with coffee, with the intent thereby to injure and kill Mrs. P. James and William Tufts. He was convicted, and his punishment assessed at five years’ confinement in the penitentiary.

The state, by its Assistant Attorney General, has made a motion to strike out what purports to be a statement of facts, on two grounds: First, that it was not presented and filed in the lower court within the time prescribed by law; and, second, because it was not approved or passed upon by the judge of the court. This case is exactly like the ease of Charlie Roberts, alias Browney, v. State, 136 S. W. 483, recently decided by this court, but not yet officially reported. The only difference between the two cases is that the motion for a new trial and the sentence in the lower court were four days earlier in this case than in the said Roberts, alias Browney, Case, and there has been sent up with the record a purported statement of facts, which has not the action of the judge thereon. The same affidavits, practically word for word, except applicable to this case, instead of to the Roberts, Alias Browney, Case, was filed in this court about the statement of facts as in said other cause, and the affidavit of the judge shows that this purported statement of facts was never at any time presented to him for his action. The motion of the Assistant Attorney General is therefore sustained, on both grounds urged.

There is but one question raised by the appellant which we can consider, as none of the others can be considered, because there is no statement of facts. That question is this: As stated above, the indictment charges that the poison was mingled and mixed with the coffee, with the intent of the appellant to injure and kill said Mrs. James and Tufts. By the charge of the court the question of the intent to injure and kill Mrs. James alone was submitted. The appellant claims that this is a fatal error, and must result in a reversal of the judgment. This identical question was before this court in the case of Scott v. State, 46 Tex. Cr. R. 305, 81 S. W. 950, and was well considered. The court, through Judge Henderson, decides the point clearly and specifically against the appellant. The same question is decided against the appellant by this court also in the case of Nite v. State, 41 Tex. Cr. R. 341, 54 S. W. 763. See, also, Keaton v. State, 41 Tex. Cr. R. 632, 57 S. W. 1125, Augustine v. State, 41 Tex. Cr. R. 68, 52 S. W. 77, 96 Am. St. Rep. 765, and Herera v. State, 35 Tex. Cr. R. 607, 34 S. W. 943. It is unnecessary for us now to further discuss this question.

There being no error in the record, the judgment is affirmed.  