Wyatt v. State (16 S.W.2d 231, 1929)

BATTIMORE, J.

Conviction for murder; punishment, 15 years in the penitentiary.

We find in the record no statement of facts. A motion was filed to disqualify the county attorney upon the ground that he was paid by fees and not by the payment of a salary. There is nothing in the contention. Such officer performs no judicial or magisterial service in such prosecution. The authority of Ex parte Kelly (Tex. Cr. App.) 10 S.W.(2d) 728, is not in point, nor do we find anything in article 5, § 11, of the Constitution ■ of Texas, contrary to the view we have just expressed.

We find in the record six bills of exception complaining of the introduction of testimony. In the absence of a statement of facts, it is impossible for this court to appraise the correctness vel non of such exceptions. This is also true of bill of exceptions No. 8 which complains of the argument of the special prosecutor, Hon. B. E. Gafford. The contention being that the remarks of said prosecutor were outside the record and not supported by the testimony, this leaves us in a situation where we cannot tel'l whether the complaint was well founded or not, there being no facts.

Einding no error in the record, the judgment will be affirmed.