
    HALL v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 3, 1913.)
    1. Ckihinal Law (§§ 1092, 1099) — Appeal-Statement op Facts.
    Where the term at which defendant was convicted of a misdemeanor adjourned May 28th, a statement of facts and bill of exceptions, not filed until July 30th, could not be considered, either in passing on alleged errors or as the basis for supporting the judgment.
    -n or otner cases. una. i\___ _ „„„ Law, Cent. Dig. §§ 2803,2829, 2834-2861, 2866-2880,2919; Dec. Dig. §§ 1092, 1099.]
    2. Criminal Law (§ 1144) — Appeai^Pre-sumption — Instructions.
    Where the court cannot consider the statement of facts, it must presume that the trial court submitted the law as applicable to the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. § 1144.]
    
      3. Criminal Law (§ 814) — Trial — Issues and Variance.
    Under an information for keeping a disorderly house in a house owned by another and leased by the defendant, an instruction authorizing a conviction if defendant himself was the owner was reversible error, since he could not be charged with committing an offense in one way and be convicted for its commission in another way.
    [Ed. Note. — For other cases, see Criminal Uaw, Cent. Dig. §§ 1821, 1833, '1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    Appeal from Upshur County Court; W. H. McClelland, Judge.
    Martin Hall was convicted of keeping a disorderly house, and he appeals.
    Reversed and remanded.
    Warren & Briggs, of Gilmer, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was tried at the May term of the county court of Upshur county, which adjourned on the 28th day of May. The statement of facts and bills of exceptions were not filed until the 30th day of July. This is a misdemeanor case, in which appellant was prosecuted under an information which charged him with “keeping and being concerned in keeping a disorderly house, in a house leased, occupied, and controlled by him, the said Martin Hall, and which said house was owned by Taylor Martin, etc.”

Under all of our decisions neither the statement of facts nor bills of exceptions' can be considered, nor made the basis for supporting the judgment any more than they can be considered in passing on the alleged errors, and while, if we could look to the statement of facts, the error complained of in the charge as a fundamental error might be immaterial, in that it might appear there was no evidence that appellant was the owner of the house, yet, as we cannot consider the statement of facts, we must presume the court submitted the law as applicable to the evidence, and under such circumstances the charge of the court would authorize the conviction of appellant as owner of the house when the information charged that Taylor Martin was the owner.

The court instructed the " jury: “Before the state will be entitled to a conviction in this case it will be necessary for the jury to believe from the evidence, beyond a reasonable doubt, that defendant, Martin Hall, was the owner, lessee, or tenant,” etc. Again, in submitting the case specifically, the court instructed the jury: “If you believe from the evidence, beyond a reasonable doubt, that defendant was the owner, or lessee, or tenant of a house,” etc., he would be guilty. It is thus seen that while.the information charged that appellant was the lessee or tenant, and that Taylor Martin was the owner, yet the charge authorized his conviction if he. and not Taylor Martin, was the owner. The information Could have charged that he was owner, lessee, and tenant; but this it did not do, but specifically alleged ownership in another, and yet the charge authorized this conviction if he was the owner. He cannot be charged with having committed an offense in one way, and be convicted of having committed it in another way.

Under such circumstances, the case must be reversed and remanded.  