
    ANDERSON v. STATE.
    (No. 6430.)
    (Court of Criminal Appeals of Texas.
    Nov. 30, 1921.
    Rehearing Denied March 1, 1922.)
    Criminal law <&wkey; 1094 — Burden on appellant to establish that he was deprived of bills of exceptions.
    The burden is on appellant to establish his claim that he has been deprived of his bills. of exceptions without fault on his part, and, when he fails to do so, the judgment will be affirmed; there being no question subject to review, in absence of bills of exceptions and statements of fact.
    Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.
    Ike J. Anderson was convicted of assault with intent to murder, and appeals.
    Affirmed.
    Baskett & De Dee, of Dallas, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction was for assault with intent to murder appellant’s wife. Punishment, seven years in the penitentiary.

The record is before us without statement of facts or bills of exceptions. Ah affidavit appears among the papers, which was filed in this court by appellant’s attorney on the day the case was submitted, in which he claims to have been deprived of his bills of exceptions by the trial judge. He makes no such claim as to the statement of facts. Attention of the judge having been called to the affidavit by the Assistant Attorney General, an affidavit has been filed by both the judge and his stenographer, controverting the one made by the attorney. We can see no good results which would follow an extended review of the differences thus arising, nor any necessity for setting out the affidavits at length. It becomes our distasteful duty to settle an issue of fact between them. The burden is upon appellant to establish that he has been deprived of his bills of exceptions, without fault on his part. We are unable to conclude he has discharged this burden, in view of the counter affidavits. The absence of a statement of facts, without attributing to the judge any responsibility therefor, is persuasive that the blame for the absence of the bills of exceptions should not be charged to him.

There being no questions subject to review, in the absence of bills of exceptions and ■ statement of facts, the judgment of the trial court is affirmed.

On Motion for Rehearing.

DATTIMORE, J.

Appellant’s attorney has filed another affidavit, made by himself, in support of his motion for rehearing. We have carefully examined same, and while it is an amplification in some respects of the one on file at the time the original opinion herein was written, it seems to present no additional facts upon which this court might be led to base a different conclusion. We are in the regrettable condition, mentioned in the opinion, of having to decide between the affidavit of appellant’s attorney, on the one hand, and those of the trial judge and his court reporter, on the other.

We have been unable to conclude that the matter was improperly decided in the original opinion, and the motion for rehearing will be accordingly overruled.  