
    CANTRELL v. STATE.
    (No. 9766.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1926.
    Rehearing Denied March 3, 1926.)
    1. Criminal law &wkey;>!098.
    Statement of facts in question and answer form may not be considered; statute requiring narrative form.
    On Motion for Rehearing.
    2. Criminal law <&wkey;1098 — Transcript of testimony before examining magistrate, introduced in evidence, may be inserted in statement of facts.
    Transcript'of questions and answers before examining magistrate, which was introduced in evidence, may be inserted in that form in statement of facts, though not narrative, as it is a copy of a written instrument.
    3. Criminal law <&wkey;>958(3) — Newly discovered evidence held not ground fop new trial; there being no showing of source or time of its discovery.
    Newly discovered evidence was not ground for new trial for robbery, when there was no showing of source of discovery or that it was not known to appellant, and it would probably not affect verdict.
    4. Criminal law &wkey;>730(8) — District attorney’s statement that state wanted facts, so jury might know whether “to believe this, negro defense alibi,” was no serious injury.
    District attorney’s statement tlfat state wanted facts, so jury might know whether it was “going to believe this negro defense alibi,” which , court instructed jury to disregard, was not serious injury, if any.
    5. Criminal law <&wkey;l09l(ll).
    Bills of exception' in question and answer form may not be considered under Vernon’s Ann. Code Or. Proc. 1916, art. 846.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Dallas County; Felix D. Robertson, Judge.
    
      T. B. Cantrell was convicted of robbery, and be appeals.
    Affirmed.
    L. M. Ballowe, of Dallas, for appellant.
    Sbelby Cox, Dist. Atty., and William Mc-OraWj'Asst. Dist. Atty., both of Dallas, Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for tbe State.
   BERRY, J.

The offense is robbery, and tbe punishment is 10 years in tbe penitentiary.

Tbe state has filed a motion to strike from tbe record tbe statement of facts. Tbe record contains 72 pages, and it is very conservative to say that at least 85 per cent, of this' statement of facts is composed of questions and answers and statements of tbe court and attorneys interested in tbe case. Tbe statute itself requires that statement of facts be in narrative form, and this court has repeatedly held that, under said statute, it is not authorized to consider a statement of facts in question and answer form. Ishamael v. State, 272 S. W. 794, 100 Tex. Cr. R. 254; Smith v. State, 272 S. W. 793, 100 Tex. Cr. R. 234; Pahlka v. State, 271 S. W. 899, 100 Tex. Cr. R. 504; Jacobs v. State, 242 S. W. 232, 92 Tex. Cr. R. 253; James v. State, 262 S. W. 500, 97 Tex. Cr. R. 612. We regret that tbe plain provisions of the statute and tbe unbroken rulings of this court construing this statute have been entirely disregarded in tbe preparation of this statement of facts, but we have no option but to bold that we are not authorized to consider tbe same in tbe form here presented.

In tbe absence of a statement of facts, we are unable to determine that any error was committed by tbe trial court in overruling the motion for a new trial on account of tbe newly discovered evidence. Without tbe statement of facts we cannot say that the alleged newly discovered evidence would or might have changed tbe result, had it been produced on tbe trial of tbe case.

Many of tbe bills of exceptions contained in the -record are also in question and answer form, and, under the unbroken rulings of this court, will not be considered for that reason. All of tbe bills relate to matters that are unintelligible to us without a consideration of the statement of facts and under tbe condition of this record showno error.

Finding no error in -the record, tbe judgment is in all things affirmed.

PER OURIAM. Tbe foregoing opinion of tbe Commission of Appeals has been examined by tbe judges of tbe Court of Criminal Appeals, and approved by the court.

On Motion for Rehearing.

DATTIMORE, J.

In tbe statement of facts herein is inserted tbe transcript of tbe testimony beard by an examining magistrate. Tbe testimony was taken down before said magistrate in question and answer form, and, having been introduced as testimony on this trial, it was proper to insert it into tbe statement of facts in tbe same form in which it was offered in evidence, game appeared in this statement of facts in such way as not to challenge our attention to tbe fact on original consideration, that this was tbe reproduction of a written instrument in evidence. Said transcript contained 37 pages in questions and answers. Aside from same, other parts of tbe statement of facts herein are in question and answer form, but, as tbe major part of tbe remainder is in narrative form, we have concluded to review tbe facts. We deem same amply sufficient to support tbe conclusion reached by the jury.

Tbe motion for new trial set up newly discovered evidence, viz. tbe testimony of two boys. Tbe facts appearing in tbe record on tbe question of diligence in this matter do not measure up to the demand- of tbe law. There is no showing of tbe source from which appellant received this testimony or became aware of same. There is no testimony or affidavit from bis attorney of tbe fact that same was not known to him. Both boys referred to testified on tbe bearing of tbe motion and said, they were by tbe side of tbe store whose proprietor was robbed about 9:40 at night. They saw two men drive up in a green car and go into tbe store. One of the boys said that when tbe men came out they both bad pistols, and that one of them knocked him down. He was of opinion that appellant was not either one of the men. Tbe other boy said be went to tbe door of tbe store and looked in while tbe robbery was going on, but was unable to say whether appellant was or was not one of the two men committing tbe robbery. Aside from tbe lack of diligence shown, we are further of opinion that the testimony of the boy, who was of opinion that appellant was not one of tbe men, relating to the question of identity alone and tbe circumstances surrounding bis seeing tbe party— that is, in tbe nighttime, and when they passed in a hasty manner and one of them knocked him down — would not be likely to be taken by the jury as seriously controverting the positive testimony of three witnesses who were in tbe lighted store where tbe robbery occurred, each of whom positively identified appellant as one of the men. We think tbe learned trial judge did not abuse bis discretion in overruling tbe motion.

Appellant’s bill of exceptions No. 2 complains of a question propounded by tbe district attorney to appellant who took the witness stand, also to a statement made in opposition to said objection to tbe effect that tbe state wanted tbe facts so that tbe jury might know whether it was “going to believe this negro defense alibi,” which remark was excepted to and seems to be tbe thing complained of in tbe bill. Tbe court instructed tbe jury not to consider tbis statement. We perceive no matter of serious injury, if any at all.

Appellant’s bills Nos. 3, 4, 7, and 9 were of tbe manner and method of tbe examination of witnesses by counsel for tbe state. Without setting same out a.t length, we observe that in one or two minor matters questions were asked which might be deemed objectionable, but concerning matters which seem of but slight importance.

Bills of exception Nos. 6, 10, and 12 were in question and answer form, and for that reason cannot be considered by us under article 846, Vernon’s C. C. .P. Bills of exception Nos. 5 and 11 show that appellant’s objections to certain matters were overruled, but same do not set out what evidence, if ány, was then admitted.

Being unable to agree with appellant’s motion, same will be overruled.  