
    PYRON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 21, 1911.)
    1. Infants (§ 66) — Capacity foe CRIME — INSTRUCTION.
    In a prosecution against an infant for the theft of horses, a charge that, if the infant be found to be less than 13 years of age, then he cannot be convicted, unless he has discretion sufficient to understand the nature and illegality of the theft, sufficiently presented the question of the infant’s incapacity.
    [Ed. Note. — For other cases, see Infants, Cent. Dig. § 172; Dec. Dig. § 66.]
    2. Criminal Law (§ 1090) — Appeal—Questions Presented foe Review.
    In the absence of a statement of facts or bill of exceptions preserving the testimony, the appellate court cannot review either the insufficiency of the evidence to support a conviction or the mental status of the accused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2804, 2862; Dec. Dig. § 1090 ]
    Appeal from District Court, Smith County; R. W. Simpson, Judge.
    Jimmie Pyron was convicted of theft, and appeals.
    Affirmed.
    O. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of theft of two horses. The jury assessed his punishment at four years in the State Institution for the Training of Juveniles..

The record is before us without a statement of facts or bill of exceptions. In his motion for a new trial, appellant complains the court refused to give a charge to 'the effect that if the jury should find that appellant committed theft of the horses, and was between the age of 9 and 13 years, they could not convict, unless the state had shown to their satisfaction beyond a reasonable doubt by evidence that at the time the offense is alleged to have been committed he had discretion sufficient to understand the illegality of the act constituting the offense. The court gave this charge: “If you shall find that the defendant is less than 13 years of age, then you cannot convict him, unless the state has shown by the evidence that he had discretion sufficient to understand the nature and illegality of the act constituting the offense of theft of horses as charged.” We think this was a sufficient presentation of that question, if the question was raised by the evidence; and we take it for granted that it was, inasmuch as the court gave the instruction above quoted.

We are unable to pass upon any question with reference to the mental status of the defendant, in the absence of the testimony. The other two grounds of the motion for new trial are based upon the alleged insufficiency of the evidence to support the conviction. Without the evidence, it is impossible to review those questions.

The judgment is affirmed.  