
    BALL v. STATE.
    (No. 8589.)
    (Court of Criminal Appeals of Texas.
    May 28, 1924.
    
    Rehearing Denied June 25, 1924.)
    Criminal law <&wkey;l i06(3) — Statement of facts, first brought before court on motion' for rehearing, held not entitled to consideration.
    Where transcript on appeal was filed on March 6, and case submitted and determined on May 28, statement of facts, first brought before court on motion for rehearing and on application for certiorari on June 12, held nor entitled to consideration, notwithstanding illness of one of defendant’s counsel, where others who appeared for him could have acted.
    Appeal from Criminal District Court, Williamson County; James R. Hamilton, Judge.
    Dewey Ball was convicted of assault with a prohibited weapon,' and he appealed, and on motion for rehearing applied for certio-rari.
    Judgment affirmed, and motion for cer-tiorari and rehearing -overruled.
    W. 0. Wofford, of Taylor, for appellant.
    Tom Garrard, State’s Atty., and Grover C Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

Charged by indictment with the offense of assault with a prohibited weapon, appellant entered a plea of guilty, and the jury assessed his punishment at confinement in the'penitentiary for a period of one year.

The record is accompanied by no statement of facts; nor is there complaint, by bill of exceptions or otherwise, of any ruling of the trial court, or fault-in the trial of the case. The indictment is not attacked, nor have we observed in it any vice. So far as we are able to discern from the record, the conviction is regular, and this court has no choice but to enter a judgment of affirmance.

Such is the order.

On Motion .for Rehearing and Application for Certiorari.

A verdict of guilty and judgment of conviction was entered against the appellant at a term of court terminating on the 2d day of February, 1924. The transcript was filed in this court on March 6, 1924, and after submission a judgment of affirmance was entered on the 28th of May, 1924.

In a motion for rehearing, filed on the 12th day of the current month, appellant, for the first time, seeks to have brought before this court the statement of facts. In its reply to the motion, the state attaches a statement of facts filed in the district court on the 12th day of May, 1924, signed by state’s counsel, but by no counsel for the appellant, and approved on the 12th day of May, 1924.

In the. motion for certiorari it is asserted that within the 80 days after adjournment granted, within which to prepare and file the statement of facts and bills of exception, a statement of facts was prepared and delivered to the attorney for the appellant, named in the motion; that the attorney mentioned became sick, underwent an operation, and remained in the' sanitarium until after the expiration of the 30 days allowed within which to file the statement of facts, and from the time he received it until after said time expired said attorney was too ill to give the matter attention. In the opposition to the motion, the statement is made that there were five attorneys appearing for* the appellant, and the record reveals that the motion for new trial was signed by one firm and three individual attorneys.

We have examined the statement of facts attached to the opposition made, and observe from it that witnesses testified that the appellant and others made an assault upon the injured party, as charged in the indictment; that in the assault pistols were* used, one of which was in the hands of the appellant. No testimony was offered in his behalf, as revealed by the statement, nor does he, in connection with the motion, attach any bills of exception, either in form or" substance. The facts averred in the application for certiorari would not warrant the consideration of the statement of facts, but, even if considered, it points to. no fact either denying, justifying, or mitigating the offense. There was a plea of guilty. The lowest penalty was assessed. No complaint was made of any ruling of the trial court in receiving the testimony or in instructing the jury. No'fact is set up in the motion for new trial.

We have no choice but to overrule the motidn for certiorari and the motion for rehearing. 
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