
    LYNCH v. STATE.
    (No. 6569.)
    (Court of Criminal Appeals of Texas.
    Dec. 21, 1921.
    Rehearing Denied Jan. 25, 1922.)
    1. Criminal law <®=»I694 — Review limited to indictment and charge when record contains no statement of facts or bilis of exceptions.
    When the record contains no statement of facts or bills of exceptions, the court can only determine whether the indictment is in conformity with the statute and whether the charge fairly presents the law of the case.
    On Motion for Rehearing.
    2. Criminal lav/ 1101 —- Failure of defendant’s attorney to prepare statement of facts entitles him to no relief.
    The Court of Criminal Appeals can give no relief to a defendant where an attorney of his own choosing has failed to have a statement of facts prepared and filed, as it is only when a defendant is .deprived of a statement of facts after the exercise of due diligence on his part or in his behalf that relief can be granted.
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    W. S. Lynch was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    W. O. Scott, of Dallas, for appellant.
    R. G. Storey, Asst. Atty Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Dallas county of the offense of assault with intent to murder, and his punishment fixed at two years in the penitentiary.

The record is before us without a statement of facts or bills of exception. We have examined the indictment, which seems to be in conformity with the statute, and the charge of the court, which presents the law of the ease fairly.

In this condition of the record no other matter is before us for consideration, and the judgment of the trial court will be affirmed.

On Motion for Rehearing.

At a former day of this term this case was affirmed; there appearing in the record neither statement of facts nor bill of exceptions, and the matters of procedure involved appearing to us to be in conformity with law.

There is now filed on behalf of appellant a motion for rehearing, in which it is stated that at the time of his trial he was represented only by counsel appointed by the court, and that thereafter he employed and paid an attorney to take charge of his appeal, and that, for some reason unknown to counsel who files this motion, said attorney failed to have a statement of facts prepared and filed for presentation to us. We regret that a record should appear before us in this condition, but find ourselves unable to afford appellant any relief. It is not made to appear that any bills of exception were taken during the trial of his case, nor have we any authority given us by statute to grant any sort of relief to one who appears before us without a statement of facts, unless it is made to appear that he has been deprived of same after the exercise of due diligence on his part or in his behalf. One who employs an attorney of his own choosing, who fails to do something made necessary by statute in order to properly present his case before us, is given no remedy at the hands of this court for failure or refusal of such attorney to do that which he ought. We have no option but to overrule appellant's motion. We are to consider the case as made by the record before us, in the absence of some affirmative injury shown to us to have been inflicted upon the accused, by which he was deprived of a proper record. The showing made by appellant’s attorney may be made the basis of an appeal to the chief executive.

The motion for rehearing will be overruled.  