
    WOODY v. STATE.
    (No. 7785.)
    (Court of Criminal Appeals of Texas.
    Jan. 9, 1924.
    Appeal Reinstated May 14, 1924.
    Rehearing Denied Oct. 22, 1924.)
    1. Criminal law @=1144(1) — Record failing to show arraignment, plea, jury trial, or judgment held not entitled to consideration.
    Where record did not show any plea, arraignment, trial by jury, or judgment rendered, and where transcript in two parts appeared to have been filed in two counties, but contained nothing indicating that part filed in one county was filed in the other after a change of venue had been ordered, held record could not be considered.
    2. Criminal law @=1144(8) — Statute does not require presumption of jury trial not affirmatively shown by record.
    3. Criminal law @=1088(6') — -Motion for new trial which does not appear to have been filed will not be considered on appeal.
    Court of Criminal Appeals will not consider a motion for new trial which does not appear to have been filed.
    Code Cr. Proc. 1911, art. 938, does not Require court to presume that case was tried before jury where record does not affirmatively show such fact.
    On Motion to Reinstate Appeal. ■
    4. Criminal law @=145 — Change of venue on court’s own motion held no.t to present error.
    Change of venue on 'court’s own motion to particular county held not to present error, no effort having been made to have venue changed from that county when case was called for trial.
    On Motion for Rehearing.
    5. Criminal law @=730(11) — Argument of counsel held cured by instructions.
    Where defendant’s counsel argued that had defendant mistreated his wife state would have produced as witnesses her relatives to prove it, argument by state’s attorney that if he had been permitted to introduce such relatives he could have covered defendant with such proof, held cured by instructions not to consider such argument.
    Appeal from District Court, Callahan County; W. R. Ely, Judge.
    Lunsford Woody was convicted of murder, and he appeals.
    Affirmed.
    J. E. Cunningham, of Abilene, and W. E. Martin, of Stanton, for appellant.
    Stinson, Coombes & Brooks, of Abilene, Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., for the State.
   LATTIMOBE, J.

We cannot consider the record in this case. No judgment appears therein. Estes v. State, 38 Tex. Cr. R. 506, 43 S. W. 982; Coleman v. State (Tex. Cr. App.) 28 S. W. 951. There is no showing that the case was tried before a jury, or that there was arraignment or plea. Marks v. State, 10 Tex. App. 334. Article 938, C. C. P., requires us to presume that when a jury is impaneled and sworn same was properly done in the absence of a showing to the contrary, but we know of no authority authorizing us to presume that a case was tried before a jury when the record does not affirmatively show this fact. The transcript herein is made up of two parts, 26 pages of which seem to have been filed in Taylor county, Tex., and the remainder in Callahan county. There is nothing about that part which was apparently filed in Taylor county to indicate that if ever was filed in Callahan county, after a change of venue was ordered. The same indictment is certified to have been returned by two grand juries, one impaneled in Taylor county in April, 1921, and the other in Callahan county in October, 1922. The indictment filed in the latter county is the only document in the second portion of transcript which is accompanied by file mark. Neither the purported charge of the court nor the motion for new trial are dated or filed.

In Harvey v. State, 57 Tex. Cr. R. 7, 121 S. W. 605, this court held it would not consider a motion for new trial which did not appear to have been filed. There is no order upon appellant’s motion for a new trial and no notice of appeal. The order extending the time for filing statement of facts and bills of exception is not dated.

The appeal must be dismissed. We have no wish to be critical, but there are many papers in this record wholly unnecessary, such as copies of orders for special venires, capiases, repetition of recognizances, ■ the insertion of which adds to the costs, and serves no useful purpose. In case it be found that this record can be corrected, we respectfully suggest that only those things be placed therein which are necessary to bring the case properly before this court.

The appeal must be dismissed.

On Motion to Reinstate Appeal.

Appellant was convicted in the district court of Callahan county of murder, and his punishment fixed at six years in the penitentiary.

The appeal was dismissed in this case at a former day of the term, because of an insufficient transcript. Since said dismissal a new transcript has been filed correcting the errors and omissions of the one originally here presented, and we are now considering the case upon its merits.

The case originated in Taylor county, and was transferred upon the court’s own motion to Callahan county, in the same judicial district. Appellant reserved a bill of exceptions to the change of venue. The order of the learned trial judge changing the venue recites that it appeared to the satisfaction of the court that a trial alike fair and impartial to the accused and the state could not be had in Taylor county, because of the large acquaintance in said county of both deceased and the accused, the notoriety and publicity theretofore given the case in said county through the newspapers and other channels, and also because there had been a largely attended former trial of this case whose proceedings had been given to .the public through newspapers, etc. The bill of exceptions taken to the action of the court in changing the venue asserts that t-he reasons set out in the order by the court were not in fact the court’s reasons, and certain alleged statements of the learned trial judge' were presented in the bill as originally prepared by appellant’s counsel, as being statements made to Mr. Martin of counsel for the defense, from which statements other reasons would be inferred as those-for the change of venue. However, said bill is qualified by the statement of the trial court that he made no such statements to Mr. Martin, and that a change of venue had been requested by appellant’s counsel. The assertion in said bill of an assumption on the part of appellant that he could not get a fair and impartial trial in Oallahan county seems unsupported b|y anything in the bill as qualified and accepted by appellant. We note that no effort was made to have the venue changed from Callahan county when the case was called for trial there.

The only other bill of exceptions in the record complains of certain argument of an attorney assisting in the prosecution. From the court’s qualification appended to this bill it appears that said argument was in reply to argument of one of appellant’s attorneys, and viewed in the light of this qualification the bill presents no error.

There were no exceptions to the charge of the court, and none appear reserved to the admission or rejection of testimony. The facts support the conclusion of guilt arrived at by the jury, and an affirmance will be ordered.

On Motion for Rehearing.

The language attributed to counsel for the state in bill of exceptions No. 2, as originally prepared by counsel for the defense, cannot be accepted by us as a correct statement in view of what is said by the court in his qualification to the bill, and the language set out by him as that used by counsel. Substantially, the argument of defense counsel on the point raised by said bill was that appellant had not mistreated his wife, in support of which said counsel stated that if he had the state would have put on the witness stand certain named relatives of appellant’s wife and others to prove it. The learned trial judge certifies in his qualification to the bill that in reply to the argument of the defense counsel the state’s attorney said that, if he ha'd been permitted to introduce said relatives to testify to the way appellant had treated his wife, they could have covered him up with such proof. The court states that in his opinion such argument was provoked by that of the defense. We observe that the court instructed the jury both orally at the time and later in writing not to consider the argument. We do not think the matter one incapable of cure by such instruction, even if the statement went further than it should.

The motion for rehearing is overruled. 
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