The opinion
ON REHEARING.
November 5, 1013.
HARPER, Judge.
This cáse was affirmed on the last term of this court and on motion for rehearing the case was postponed at the request of appellant’s counsel to give them ample time to brief same. But two questions are presented on the motion for rehearing. First, that we erred in
presuming
that evidence was heard on the motion for a rehearing. If it had been a presumption of ours, then there would be merit in appellant’s motion, but was it a presumption on our part? The order overruling the motion for a new trial reads: “On this day came on to be heard the motion of the defendant Earl Sharp herein for a new trial and the defendant being present and said motion being presented to the court and the court having heard and considered said motion, the evidence adduced thereon and the argument of counsel, is of the opinion that the law is against said motion. It is therefore ordered, adjudged and decreed by the court that the said motion be and the same is hereby in all things overruled.” Thus it is seen that the court in his judgment asserts, “the court having heard and considered said motion,
the evidence adduced thereon,
and the argument of counsel, etc.,” that the motion is overruled. Yet, we are asked to ignore this solemn declaration of the trial court in his judgment, and find that he heard no evidence, but only considered the affidavits
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attached to his motion for a new trial. The motion for a new trial is but a ¡deeding, together with the exhibits attached thereto, and when it is sought to raise therein an issue extrinsic the record, it must be sworn to, yet, swearing to it, does not render it any the less a pleading in the case. And if. on the hearing of the motion appellant desires the exhibits attached to be considered as evidence, he ought to introduce ihem as such, and then if no other evidence is introduced, and his motion is overruled, appellant, in a proper bill, ought to show that fact, and then we would be authorized to review the action of the court. But when the court in his judgment-recites he heard
the evidence
adduced on this ground of the motion, and overrules it, without having the evidence before us, it is impossible for us to determine whether he ruled correctly or incorrectly, and we can not review his action.
Appellant cites us to Buies 53 and 55 of the Supreme Court, claiming that no bill of exceptions -was necessary. They read:
“Buie 53: ‘There shall be no bills of exceptions taken to the judgments of the court, rendered upon those matters, which, at common law, constitute the record proper in the case; as the citation, petition, answer and their supplements and amendments, and motions for a new trial, or in arrest of judgment, arid final judgment.’
“Buie 55. ‘The rulings of the court upon applications for continuance and for change of venue, and other incidental motions, and upon the admission or rejection of evidence, and upon other proceedings in the case not embraced in the two preceding rules, when sought to be complained of as erroneous, must be presented in a bill of exceptions, signed by the judge and filed by the clerk, or otherwise made according to the statute, and they will thereby become a part of the record of the cause, and not otherwise.’ ”
If these rules make anything plain it is that if we are expected to review the action of the court on any matter which did not constitute a part of the record at common law, such matter must be presented by bill of exceptions. Of course, if appellant’s motion for new trial only complained of errors in the record as made on the trial, it is not necessary to set up those matters in a bill of exception, but when the motion for new trial sets up matters extrinsic the record, and evidence is heard thereon, then it is necessary that the evidence be preserved by bill of exception in order to enable us to intelligently pass on whether the ruling of the court was correct .or incorrect. Probest v. State, 60 Texas Crim. Rep., 608 .
The only other ground in the motion for rehearing is that the court erred in overruling his application for a continuance. This is so thoroughly discussed in the original opinion, we hardly deem it necessary to do so again. The physical facts on the ground, the condition of the young lady when she arrived home, and the other evidence in the case show conclusively it was not a case of intercourse by consent, and if all he says the absent witnesses would swear was admitted, that her
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reputation. for chastity was bad the year prior to this alleged rape, it could not and would not probably change the verdict. Such testimony would only be admissible as tending to show consent and, as hereinbefore stated, the evidence overwhelmingly refutes this idea or plea.
The motion for rehearing is overruled.
Overruled.