
    GORDON v. STATE.
    (No. 10835.)
    Court of Criminal Appeals of Texas.
    March 9, 1927.
    Appeal Reinstated April 27, 1927. Rehearing ¡Denied Jan. 11, 1928. Second Motion for Rehearing ¡Denied March 14, 1928.
    ¡I. Criminal law <§=>l 104(3)—Failure of transcript to coníáin caption or court’s charge required dismissal of appeal.
    Failure of transcript of record to contain ■caption or charge of court below held to require dismissal of appeal.
    On Motion to Reinstate Appeal.
    .2. Criminal law <®=>l 104(3)—Failure of original transcript to contain court’s charge does not warrant reversal at instance of appellant Inserting charge in record.
    That original transcript contained no charge •of the court is no ground for reversal at instance of appellant filing new transcript showing •certified copy of charge.
    On Motion for Rehearing.
    
      3. Criminal law <¾=»1128(2)— Alleged errors not appearing from record are not considered on rehearing.
    Appellate court may not give effect to any ■of alleged errors set up in motion for rehearing which do not appear from the record.
    Appeal from District Court, Foard County ; Rob.ert Cole, Judge.
    A. J. Gordon was convicted for the theft of a mule, and he appeals.
    Affirmed.
    R. D: Pittman, of Wichita Falls, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction for theft of •one mule; punishment, two years in the penitentiary.

This case is before us without any statement of facts. However, we notice that the record contains no caption, nor is the •charge of the court below set out. We deem 'it requisite that the transcript contain these two things. For lack of same the appeal is dismissed.

On Motion to Reinstate Appeal.

Appellant has filed in the transcript a certified copy of a correct caption, and now asks that the case be considered upon its merits. He insists that a reversal should be ordered for the reason that the original transcript contained no charge of the court. A duly certified copy of the charge which had been omitted from the transcript when originally filed with this court appears in the record.

The dismissal is set aside, the case considered on its merits, and, no error appearing, the judgment will be affirmed.

On Motion for Rehearing.

This case was affirmed, after setting aside an order dismissing the appeal. Appellant filed a motion for rehearing, and in conjunction therewith asked for a writ of cer-tiorari to perfect the record, alleging that a number of material and proper parts of the record had been omitted by the clerk of the trial court in the preparation of the transcript herein. Appellant’s request for certiorari was granted, the writ issued, and there- appears now in the record what may be denominated a supplemental transcript. This has been carefully examined. Neither in the original transcript nor in the supplemental does there appear any bill of exceptions to any action taken by the learned trial judge either in the acceptance or rejection of testimony or in any matter of procedure. The facts in this case appear to amply support the conclusion reached by the jury. We are unable to give effect to any of the matters set up in the motion for rehearing which do not appear from the record.

The motion for rehearing will be overruled.

On Second Motion for Rehearing.

We sincerely trust that what we say here in denying appellant leave to file second motion for rehearing will be taken as final in this case. The case came to our desk originally without caption to the transcript, with no charge of the court, or ■ statement of facts. Following our custom, the appeal, was dismissed for want of a caption, and attention called to the other defects. Appellant filed a motion for rehearing, and without the formality of a certiorari sent up a corrected caption. In the meantime the state’s attorney with this court, also without the formality of a certiorari, had procured and filed here a duly certified copy of the charge given by the court below. No question of the correctness of either appearing, and no objections being fijed, we considered\both the caption and the charge, and, no error appearing in the record, we directed an affirmance. Thereupon appellant filed a motion for rehearing, accompanying same by a request for certiorari, and he enumerated various parts of- the transcript proper, which he averred had been omitted. Being, as always, desirous of according to the accused every right, and responding to his request that he be not injured as the result of the inexperience of a district clerk, we ordered the issuance of the writ of certiorari prayed for. Same was issued, and in response to it the clerk of the court below prepared a complete transcript- and forwarded same to the clerk of this court, who duly filed it. Later the motion for rehearing, coming on, was submitted, and upon a full consideration of the charge, the caption, and the entire record the judgment of the lower court was affirmed.

Appellant now seeks to have his second motion for rehearing filed and considered, in which he says we erred in considering the charge of the court sent -here without cer-tiorari. This, as other documents filed herein, is accompanied by statements and representations about this case, and this appellant and his surroundings, and the attitude of the officers of the county of the prosecution, which have no place at all in documents coming to this court. We are loath to call attention to such matters, and, if occurring m hut a casual connection in some case, we- would not notice same, further than to decline to be influenced thereby; but, when such statements and representations are repeated again and again, we can but characterize such conduct as reprehensible in the extreme. The fact that cases against codefendants with this appellant have been dismissed, and that the officers are willing to dismiss this one in the event of a reversal, and the unfortunate surrounding of the accused, are not matters which can be represented to this court, and this fact should be well known to all attorneys. Such matters are for the Governor, and not for us.

The motion is denied.  