
    CAMPBELL v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 28, 1912.)
    1. Criminal Law (§ 1099) — Statement of Facts — Approval—Filing.
    Wherfe a statement of facts was not approved by the regular judge of the court nor the judge who tried the case, and no reason was given therefor, and the statement of facts did not bear the true file mark, but was dated 'back, it could not be considered for any purpose.
    [Ed. Note. — For other cases, see Criminal Law, Cent. D-ig. §§ 2866-2880; Dec. Dig. § 1099.]
    2. Criminal Law (§ 1144) — Instructions— Review — Statement of Facts.
    In the absence of a statement of facts, it will be presumed that, if the charge of the court was applicable to any state of facts that could be proved under tbe indictment, all tbe law applicable to tbe evidence was given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2781, 2901, 3016-3037; •Dec. Dig. § 1144.]
    3. Criminal Law (§ 1165) — Degree of Offense — Mawslaxj ghtee .
    Where accused has been indicted and convicted of manslaughter, be cannot object that the evidence was such that, if it showed any offense, it was a higher grade of homicide.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3085, 3086, 3088, 3089; Dec. Dig. § 1165.]
    Appeal from District Court, Brazos County; J. C. Scott, Judge.
    Will Campbell was convicted of manslaughter, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted by the grand jury, charged with the offense of manslaughter. He was tried, convicted, and his punishment assessed at two years confinement in the state penitentiary.

Court convened on the 6th day of March, 1911, and adjourned on April 13, 1911; Hon. J. C. Scott, the regularly elected judge, presiding. Appellant was tried with Judge Scott as judge on March 23, 1911. It appears that subsequent to the trial of appellant, on April 3, 1911, Judge Scott was unable to attend court, and Hon. J. W. Doremus was elected special judge. As shown above, court adjourned on April 13th, while the statement of facts was not agreed to and approved until the 27th day of May, more than 30 days subsequent to the adjournment of court, yet it bears file marts as if filed on May 8th, 19 days before it was agreed to by attorneys and the judge had approved same, thus bearing evidence on its face that the statement of facts was “filed back” which practice is absolutely prohibited by this court. It further appears that while this case was tried by Hon. J. C. Scott, the regular judge, the statement of facts is -not approved by him, but is approved by Special Judge Doremus in vacation. Doubtless Judge Doremus would have authority to approve statements of facts in cases tried by him, either in term time or vacation, but he would not have authority in vacation to approve a statement of facts in a ease tried by Judge Scott. The statement of facts not being approved by the regular judge of the court, nor the judge who tried the case, and no reason given why it was not done, and it also appearing that the statement of facts does not bear the true file mark, but was dated back, the same cannot be considered for any purpose.

There being no statement of facts in the record that we can consider, and the rule of law being that, if the charge of the court is applicable to any state of facts that could be proven under the indictment, this court presumes that the law and all the law applicable to the evidence was given in charge, the various grounds in the motion present no error.

We might say, however, that the main contention of appellant seems to be that the appellent having been indicted for manslaughter only, and the evidence, if showing any offense, proved a higher grade of homicide, the judgment is unauthorized by the evidence. It has been repeatedly held by this court that if the evidence would support a verdict for murder in the first or second degree, and appellant is prosecuted and convicted of manslaughter only, no such error is presented as could or would cause a reversal of the case.

There being no statement of facts, we cannot consider the ground alleging newly discovered evidence. There is no way for us to determine whether or not the newly discovered evidence is material; the evidence on the trial not being before us in such shape, we can not consider same.

Judgment affirmed.  