Opinion
No. 11910.
Delivered May 30, 1928.
1. — Rape — Charge of Court — No Statement of Facts — Cannot Be Appraised.
Where the record is without a statement of facts, complaint of the court's charge cannot be properly appraised.
2. — Same — Bill of Exception — Incomplete — Presents No Error.
A bill of exception which complains of argument of counsel for the state as a reference to appellant's failure to testify, which does not show that appellant did not testify on the trial, and no facts are certified in the bill from which we could conclude that it was a necessary reference to defendant's failure to testify, presents no error. See Boone v. State, 90 Tex. Crim. 374, and Howard v. State, 1 S.W.2d 289.
Appeal from the District Court of Frio County. Tried below before the Hon. W. O. Murray, Jr., Judge.
Appeal from a conviction for rape of a female under the age of consent, penalty five years in the penitentiary.
The opinion states the case.
No brief filed for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
Conviction is for rape upon a female under eighteen years of age, punishment being five years in the penitentiary.
The record is without a statement of facts. Three bills of exception are found in the transcript. One brings forward exception to the instructions given to the jury. In some respects the charge was amended in response to objection. Other objections turn on the evidence. Without knowing what evidence was before the court it is impossible to appraise these complaints.
Another bill complains at the argument of the District Attorney. We find nothing in the bill manifesting error. The argument in most instances could not be held objectionable. If the purpose of the bill was to complain that the argument was a reference to the failure of the defendant to testify it is incomplete in two particulars: (1) there is no recital in the bill advising us that he did not testify; (2) no facts are certified in the bill from which we could conclude that it was a necessary inference that the argument had reference to defendant's failure to testify. Boone v. State, 90 Tex. Crim. 374, 235 S.W. 580; Howard v. State, 1 S.W.2d 289.
The only other bill reserves exception to overruling the motion for new trial which embraces all supposed errors set forth as grounds for the motion. Such a bill presents no matter demanding consideration. Ivory v. State, 101 Tex. Crim. 123, 274 S.W. 565; Holt v. State, 98 Tex.Crim. Rep., 265 S.W. 394.
The judgment is affirmed.
Affirmed.