
    Joe Blackshire v. The State.
    
      No. 390.
    
    
      Decided March 28.
    
    1. Statement of Facts — Order for Filing After Adjournment — Practice.— The order allowing ten days’ time for filing the statement of facts after adjournment of court must he entered of record, and a statement of facts filed after adjournment can not be considered on appeal in the absence of such record entry, even though the judge certified that he ordered it to be filed in accordance with an order made in the case to that effect.
    2. Continuance — Bill of Exceptions — Practice on Appeal. — The action of the trial court refusing a continuance will not be revised on appeal in the absence of a bill of exceptions reserved to said action.
    3. Newly Discovered Evidence — New Trial. — In the absence of a statement of facts, the court, on appeal, can not consider whether or not the trial court erred in overruling a motion for new trial on account of newly discovered testimony.
    
      Appeal from tbe District Court of Fort Bend. Tried below before Hon. T. S. Beese.
    Appellant was indicted for tbe murder of one Lint Shelton. At bis trial be was convicted of murder of tbe second degree, the punishment being affixed at a term of five years in tbe penitentiary.
    Tbe statement of facts was made up and filed after adjournment of tbe court for tbe term, but no order was entered of record in the minutes of tbe court allowing this to be done. The statement is indorsed by tbe judge, as follows: “Approved as a true statement of facts in evidence in tbe above entitled cause, and ordered to be filed as such in accordance with an order made in tbe case authorizing tbe statement of facts to be made up and filed in ten days after adjournment. Witness my band this October 28, 1893. T. S. Beese, Judge Twenty-third Judicial District.”
    There is no bill of exceptions in tbe record.
    No briefs on file.
    
      B. L. Henry, Assistant Attorney-General, for tbe State.
   DAVIDSON, Judge.

Appellant was convicted of murder in tbe second degree, and given a term of five years in tbe penitentiary. Tbe statement of facts was filed after adjournment of tbe term of court. The judge in approving same certifies that be ordered it “to be filed as such, in accordance with an order made in tbe case authorizing tbe statement of facts to be made up,and filed in ten days after adjournment,” but no such order is to be found in tbe record.

Article 1379, Bevised Statutes, provides that “tbe court may, by an order entered upon tbe record during tbe term, authorize tbe statement of facts to be made up, and signed, and filed in vacation, at any time not exceeding ten days after adjournment of tbe term.” Tbe rules in regard to making up, certifying, and placing in the record a statement of facts are tbe same in criminal as in civil causes, by express enactment of tbe Legislature. Code Crim. Proc., art. 784; Ratcliff v. The State, 29 Texas Crim. App., 248. Construing article 1379, supra, our Supreme Court bold tbe order allowing time after adjournment of court must be entered of record, and that statements of fact filed after such adjournment can not be considered on appeal in tbe absence of such entry. It is a prerequisite to a consideration of such statement on appeal. McGuire v. Newbill, 58 Texas, 314; Ross v. McGowen, Id., 603; Railway v. McAllister, 59 Texas, 362; Trewitt v. Blundell, Id., 253; Lockett v. Schurenberg, 60 Texas, 610.

Tbe action of tbe court refusing tbe application for continuance will not be revised, because tbe appellant failed to reserve bis bill of exceptions to such ruling. Willson’s Crim. Stats., sec. 2187. In tbe absence of tbe evidence, we can not say tbe court erred in refusing tbe motion for new trial on account of alleged newly discovered testimony. If newly discovered, it may not bave been material, or tbe guilt of appellant may bave been clearly proved on tbe trial. We are unable to revise tbe question as presented by tbe record. Tbe matters urged for reversal, without bills of exception and statement of facts, do not show that error was committed on tbe trial.

Tbe judgment is affirmed.

Affirmed.

Judges all present and concurring.  