
    ERWIN v. STATE.
    (No. 5134.)
    (Court of Criminal Appeals of Texas.
    June 27, 1919.
    On Motion for Rehearing, Jan. 28, 1920.
    On Appellant’s Motion for Rehearing, March 3, 1920.
    Rehearing Denied March 31, 1920.)
    1. Criminal law <&wkey;1097(5) — Instructions CANNOT BE REVIEWED WITHOUT STATEMENT OP PACTS.
    Error assigned to the refusal of special charges requested by accused cannot be considered, in the absence of the statement of facts.
    2. Bail &wkey;>57 — Recognizance not stating PUNISHMENT IS INSUPPICIENT.
    Under Yernon’s Ann. Code Cr. Proe. 1916, art. 923, a recognizance which fails to state the amount of punishment assessed by the jury is insufficient to give jurisdiction on appeal.
    On Motion for Rehearing.
    3. Criminal law <5=1099(5) — Statement dp PACTS PILED ’ EIGHTEEN MONTHS AFTER TERM ADJOURNMENT CANNOT BE CONSIDERED.
    A statement of facts, which was not filed until one year and a half after the adjournment of the court term, cannot be considered.
    On Appellant’s Motion for Rehearing.
    4. Criminal law <&wkey;1099(5) — Uncontrovert-ED AFFIDAVIT THAT STATEMENT WAS PRESENTED IN TIME AUTHORIZES ITS CONSIDERATION.
    Where the affidavits of accused that the statement of facts was presented to the trial judge within the time fixed by law for the approval and filing thereof were not controverted, the statement can be considered on appeal, though not filed until 18 months after adjournment of the term.
    5. Criminal law <&wkey;S29(l) — Requests covered BY CHARGE NEED NOT BE GIVEN.
    The refusal of special requested charges which were governed by the main charge does not require reversal of the conviction.
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    E. J. Erwin was convicted of an aggravated assault and be appeals.
    Affirmed.
    
      O. P. Greenwood, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of aggravated assault, his punishment being assessed at a fine of $100.

The record is before us without a statement of facts. There were three special charges presented by appellant, but refused by the court. In the absence of the statement of facts we are unable to review these questions, or to reach any definite conclusion as to any supposed error in their refusal.

\vte have said this much with reference to the record in its present condition, hut in addition to this the recognizance is not in compliance with the law, in that it fails to state the amount of punishment assessed by the jury. See article 923, Vernon’s Ann. G. O. P., and the authorities thereunder collated on pages 887 and 888. Under this statute it is necessary, in order to have recognizance attach the jurisdiction of this court, that it must stipulate in the face of the recognizance the amount of punishment assessed by the jury. This recognizance does not do this. It recites that appellant was charged by indictment with the offense of aggravated assault, and was convicted of said offense, and then follows the requirements that he shall appear before the trial court from day to day and term to term in order to abide judgment of the Court of Criminal Appeals. Had the recognizance been sufficient, an affirmance would necessarily have followed in view of the condition in which the record is presented.

The appeal is dismissed.

On Motion for Rehearing.

Appellant was convicted of an aggravated assault. During a previous term this appeal was dismissed for want of sufficient recognizance. That matter has been supplied, and therefore the order of dismissal will be set aside and the case reinstated to be heard upon the record.

Appellant filed a statement of facts, which is noted in the original opinion as not accompanying the record. This statement of facts was not filed in the trial court until the 8th of October, 1919. The case was disposed of on motion to dismiss on the record as it stood in June, 1919. The trial court adjourned its term on the 20th day of March, 1918. The statement of facts was filed October 8, 1919. This was something like one year and a half after the adjournment of the court. The court is of opinion the statement of facts cannot be considered.

We are of opinion, on the record as reinstated, the judgment should be affirmed; and it is accordingly so ordered.

On Appellant’s Motion for Rehearing.

LATTIMORE, J.

At a former term the appeal in this case was affirmed, and appellant presents the case at this time upon his motion for. rehearing. The motion will be granted, to the extent of considering the statement of facts, as though the appeal had been originally properly perfected.

As originally presented, the appeal was without a statement of facts; it appearing from the record that the case was tried .in the court below in January, 1918, and a statement of facts is presented which was filed in October, 1919; but the affidavit oi appellant is before us, and not controverted, from which it appears that said statement oi facts was presented to the trial judge within the time fixed by law for the approval and filing of such statement of facts, and we have therefore considered the same.

Appellant sought, by his special charge No. 1, a peremptory instruction in his favor, which wa^ properly refused by the trial court.

By special charges Nos. 2 and 3, appellant sought instructions which were covered by the main charge. We are unable to agree with the contentions made in the exceptions reserved by appellant to the main charge, and believe the evidence sufficiently supports the verdict of the jury; and, finding no error in the judgment of the trial court, the same is again affirmed. 
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