Decided April 13, 1910.
Gaming — Statement of Facts — Want of Diligence.
Where, upon appeal from a conviction of gaming, the affidavits of counsel for both parties were conflicting; and there was not sufficient diligence shown by the appellant to secure the filing of a statement of facts, the case will be affirmed.
Appeal from the County Court of Ellis. Tried below before the Hon. J.T. Spencer.
Appeal from a conviction of gaming; penalty, a fine of $15.
The opinion states the case.
E.P. Anderson and Farrar, McRae Kemble, for appellant. — Cited Prietz v. State, 35 Tex.Crim. Rep..
John A. Mobley, Assistant Attorney-General, for the State.
Appellant was convicted in the County Court of Ellis County on the 16th day of October, 1908, on a charge of unlawfully playing cards, and his punishment assessed at a fine of $15.
As the record reaches us, it contains neither statement of facts nor bills of exception. In this state of the record there is no question presented which we are authorized to review, and it must follow that the case, in this condition of the record, should be affirmed.
Affidavits have been filed before us both by counsel for appellant as well as counsel for the State, which are not in entire agreement. We do not feel called upon, in view of the condition of the record, to undertake to reconcile these statements. We think, perhaps, it is a fair conclusion, from the entire record, that there was not such diligence used in undertaking to secure statement of facts, or such a wilful failure on the part of the county judge to approve one as would justify us in reversing the judgment for the failure of appellant to obtain a statement. As presented, we are not authorized to interfere, and the judgment of conviction is affirmed.