
    Ex Parte Benardino Lerma.
    No. 23098.
    Delivered March 7, 1945.
    Relator’s Motion for Rehearing Granted March 28, 1945.
    
      The opinion states the case.
    
      Roy A. Scott, of Corpus Christi, for appellant.
    
      Ernest S. Goens, State’s Attorney, of Austin, for the State.
   GRAVES, Judge.

Relator was charged by complaint in the justice court of Nueces County with the offense of murder. Upon an examining trial, after hearing evidence, he was remanded without bail to the custody of the sheriff to await the action of the grand jury. He, thereafter, made application to the district judge for a writ of habeas corpus, which was granted, and, upon the hearing of such writ, bail was again denied him, and he appeals.

There was an agreement by and between relator’s attorneys and the State that the testimony taken on the examining trial in the justice court, and which was in writing, should be used in its entirety in this present case, and we find same in this record, filed as a statement of facts. This statement is entirely in question and answer form, in the first place, and again same is not approved by the trial judge, and same has no file mark thereon evidencing the fact that it was filed in the court below. Under this array of objections thereto we are convinced that such a purported statement of facts should not be considered by this court. See Art. 760, Subdiv. 1, C. C. P., and note 23 thereunder.

There being no statement of facts before this court which we can consider, it will be presumed that the judgment remanding relator without bail was supported by the evidence and in accordance with law. Ex parte Adams, 13 S. W. (2d) 842; Ex parte Wellburn, 70 Tex. Cr. R. 464, 157 S. W. 154; Ex parte Wair, 130 Tex. Cr. R. 204, 93 S. W. (2d) 160.

The judgment of the trial court is affirmed.

ON MOTION FOR REHEARING.

GRAVES, Judge.

Since writing the above opinion, relator has furnished this court with a statement of facts in narrative form, properly approved by the trial judge, and filed in proper time, and we now consider the same.

Under the facts herein shown we are of the opinion that relator is entitled to bail, and this cause is therefore reversed and bail fixed in the sum of Ten Thousand Dollars, to be conditioned as required by law.  