
    E. L. Reeves v. State.
    No. 2177.
    Decided January 8, 1913.
    Rehearing Denied February 5, 1913.
    1.—Aggravated Assault—Statement of Facts.
    In the absence of a statement of facts, the question as to the court’s failure to charge on simple assault, and the objection to the argument of ' counsel cannot be considered on appeal.
    
      2.—Same—Jury and Jury Law—Bill of Exceptions.
    Where the complaint that one of the jurors who tried defendant sat on a previous trial of the case was not reversed by bill of exceptions, and no evidence was introduced, the same cannot be considered on appeal.
    [Rehearing denied February 5, 1913.—Reporter.]
    Appeal from the Criminal District Court of Harris. Tried below before the Hon. C. W. Robinson.
    Appeal from a conviction of aggravated assault; penalty, ninety days confinement in the county jail.
    The opinion states the case.
    
      R. H. Tierman and Geo. H. Currier, for appellant.
    
      C. E. Lane, Assistant Attorney-General, for the State.
   DAVIDSON, Presiding Judge.

Appellant was convicted of aggravated assault, his punishment being assessed at ninety days imprisonment in the county jail.

The record is before us without the evidence or bills of exception. The first ground of the motion for new trial alleges that the court erred in failing to charge the jury on the law of simple assault. For the reason the evidence is not before us we are unable to say that this was error. The second ground of the motion complains of the argument of State’s attorney. The ground alleges certain conclusions and statements of the prosecuting officer, when in fact the evidence did not justify such statements and conclusions. For the reason that the evidence is not before us this cannot be considered.

It is contended that one of the jurors in this case sat on the previous trial' of the case. This is not presented so it can be considered, and there was no bill, of exceptions reserved verifying the fact that the juror did or did not sit upon a former trial, nor was there any evidence introduced in connection with the motion for new trial showing this fact, if it was a fact, at least if such was the ease the record does not contain it. As this matter is presented we cannot review it.

The judgment is affirmed.

Affirmed.  