¶1The appellants were convicted upon a joint trial for assault with intent to murder; and the punishment for each was assessed at seven years.
¶2The statement of facts and an instrument which is referred to in appellant’s brief as an appendix to the statement of facts are contained in the record, but they were not filed with the clerk of the trial court as required by Art. 759a, Sec. 4, Vernon’s Ann.C.C.P. Therefore they cannot be considered. Salyer v. State, 166 Tex.Cr.R. 532, 316 S.W.2d 420.
¶3No formal bills are contained in the record.
¶4The judgment is affirmed.
¶5Opinion approved by the Court-
¶6On Appellants’ Motion for Rehearing
¶7Subsequent to the rendition of our original opinion herein the clerk of the trial court executed a certificate in which she states that an instrument entitled Oral Discussion Concerning Motion for Continuance was actually filed by her, though it in fact bears no such file mark.
¶8Under the decision of this Court such certificate cannot be considered as it comes too late. Selvidge v. State, 171 Tex.Cr.R. 140, 345 S.W.2d 523; Cunningham v. State, 172 Tex.Cr.R. 3, 353 S.W.2d 37; Hill v. State, Tex.Cr.App., 375 S.W.2d 306; and *661Ex Parte Seffens, Tex.Cr.App., 376 S.W.2d 348.
¶9Appellants’ motion for rehearing is overruled.
¶10(dissenting).
¶11Appellants were jointly indicted and prosecuted. They requested a severance.
¶12Art. 650 C.C.P. provides:
“Two or more defendants jointly prosecuted may sever in the trial upon the request of either.”
¶13The request for severance was made orally before the jury was selected. The -trial court erred in refusing to grant the request.
¶14Unlike Art. 651 C.C.P., the statute above quoted does not require a written motion or affidavit.
¶15The majority refuse to consider the statement of facts which reflects the denial of appellants’ rights to be separately tried because, though timely approved and filed in the trial court, the clerk failed to place a file mark on the instrument and did not certify to such filing until after this appeal had been submitted and the judgment affirmed. Such holding is in direct conflict with the holding in Nolen v. State, 72 Tex.Cr.R. 450, 162 S.W. 869.
¶16The statement of facts was filed when it was delivered into the possession of the •clerk of the trial court. Young v. State, 86 Tex.Cr.R. 621, 218 S.W. 754.
¶17An official file mark on such an instrument is a mere memorandum that serves as evidence of the fact of filing. Ex parte Leifeste, 127 Tex.Cr.R. 445, 77 S.W.2d 675.
¶18None of the cases cited in the majority opinion support its holding. Those pertinent relate to statements of facts or bills of exception approved or filed in the trial court after original submission of the appeal in this Court.
¶19I respectfully dissent.