
    MADDOX v. STATE.
    (No. 11143.)
    Court of Criminal Appeals of Texas.
    Oct. 12, 1927.
    Rehearing Denied Nov. 9, 1927.
    1. Indictment and information <&wkey;>l76 — State is not bound by date alleged in indictment, but offense must antedate presentment of indictment and come within limitation period.
    State is not bound by date alleged in indictment, but date proved must not be so remote as to show that prosecution for offense was barred by limitation, and must be date anterior to presentment of indictment. ‘
    2. Criminal law &wkey;>!044 — Admitting testimony of commission of offense on date two months subsequent to that alleged in indictment held not error,.where continuance for surprise was. not requested,
    In prosecution for passing forged instrument under indictment charging commission of offense on October 2, 1926, admitting testimony of witnesses, after consultation of records and refreshment of recollection, that crime was committed on December 2, 1928, held not error, where no motion for continuance or postponement was made on ground of surprise.
    3. Criminal law &wkey;>ll44(i/2) — In absence of statement of facts or showing of error in bills of exception, conviction is presumed legal.
    In absence of showing of prejudicial error in bills of exception, and in absence of statement of facts, presumption is in favor of legality of conviction.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    Robert Maddox, alias Jack Brown, was convicted of passing a forged instrument, and he appeals.
    Affirmed.
    
      Harris & Harris, of Austin, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, for tlie State.
   MARTIN, J.

Appellant was convicted of passing a forged instrument. Punishment, three years confinement in the penitentiary.

No statement of facts accompanies the record. The indictment charged the offense to have been committed on the 2d day of October, 1926.

Complaint is made in the first two bills of exception that the court permitted witnesses for the state, after having testified to the commission of the offense on or about October 2d, and after the defendant had placed his alibi witnesses on the stand to show that on that date he was in another and different place, to return to the witness stand and testify to the commission of the offense on the 2d day of December, 1926. The bills of exception are qualified with the explanation that, when the witnesses were first on the stand, they had no records, but, after consulting their records and refreshing their memory, they were able to testify to the date of the offense. The state is not bound by the date alleged in the indictment. The date proved must not be so remote as to show that a prosecution for the offense was barred by limitation; and must be a date anterior to the presentment of the indictment. See Collins v. State, 77 Tex. Cr. R. 156, 178 S. W. 345; Cudd v. State, 28 Tex. App. 124, 12 S. W. 1010; Irby v. State, 69 Tex. Cr. R. 619, 155 S. W. 543. The record fails to show any motion for a continuance or a postponement on the ground of surprise. In our opinion, there was no error in the action of the court.

We are unable to say, in the absence of a statement of facts, that the matters complained of in the remaining bills of exception were calculated to injure the appellant. In the absence of a statement of facts, the presumption is in favor of the legality of the conviction. The presence of a statement of facts might réveal that the matters complained of were entirely harmless, and the law, as we understand it, has laid upon us the duty of so presuming, in the absence of a showing to the contrary in bills of exception and in the absence of a statement of facts. Smith v. State, 89 Tex. Cr. R. 225, 230 S. W. 161; Hinton v. State, 95 Tex. Cr. R. 3, 252 S. W. 525; Curry v. York, 3 Tex. 360; Perkins v. Terrell (Tex. Civ. App.) 214 S. W. 553.

The judgment is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

In the motion for rehearing appellant combats the soundness of the conclusions stated in the original opinion. The motion, however, is void of citation of authorities or of reasons advanced for the position taken. Our examination of the record, in the light of the motion, leaves us of the opinion that on the original hearing appropriate disposition was made of the appeal.

The motion is overruled. 
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