
    ARMSTRONG v. STATE.
    (No. 9296.)
    (Court of Criminal Appeals of Texas.
    Oct. 21, 1925.
    Rehearing Denied Jan. 13, 1926.)
    1. Criminal law 144(18) — Presumption of évidence sufficient to deny new trial where no exceptions filed.
    Where in criminal prosecution affidavit, showing misconduct of juror was attached to motion for new trial, and order overruling motion contained statement that court had heard evidence on it, in absence of bill of exceptions or statement of facts, it is presumed that there was sufficient evidence to justify court in overruling motion.
    On Motion for Rehearing.
    2. Criminal law <§=l 124(3) — Evidence supporting motion for new trial must be in record to warrant review.
    To warrant review of court’s action in overruling motion for new trial, in which it was averred jury had been guilty of misconduct, evi-deuce showing motion must, by statement oí facts or bill of exceptions, be put in record during term at which trial took place; otherwise it will not be considered.
    Appeal from District Court, San Patricio County; T. M. Cox, Judge.
    D. G. Armstrong was convicted of unlawfully transporting intoxicating liquor, and lie appeals:
    Affirmed.
    H. S. Bonham, of Beeville, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   MORROW, P. J.

The offense is the unlawful transportation of intoxicating liquor; punishment fixed at confinement in the penitentiary for one year.

It was shown without controversy that in the appellant’s automobile, which he was driving at the time of his arrest, there was a quantity of whisky in jugs. The jugs were thrown from the car and broken while the sheriff was endeavoring to apprehend the appellant. Appellant, in his testimony, admitted that the jugs contained whisky, and that they had been brought by him from Victoria, in Victoria county, a distance of many miles. He interposed no defensive theory, but sought a suspended sentence on account of his youth and previous good reputation.

Attached to the motion for new trial is thé affidavit of one of the jurors, to the effect that he made a statement in the nature of new evidence to one of the jurors during the deliberation of the jury. The order overruling the motion for new trial contains a recital or statement by the court that he had heard evidence upon the motion. In the absence of a bill of exceptions or statement of facts showing what evidence was heard, the presumption that there was sufficient evidence to justify the conclusion of the trial court in overruling the motion must be indulged. See Crouchette v. State, 99 Tex. Cr. R. 572, 271 S. W. 99, see pages 103 and 104: with numerous citation of authorities.

No other questions are presented for review. The evidence is sufficient to support the verdict, and the lowest penalty was assessed.

The judgment is affirmed.

On Motion for Rehearing.

By supplemental transcript, appellant brings forward a bill of exceptions taken to the action of the court in overruling the motion for new trial. This bill, however, cannot be considered, for the reason that it was not filed during the term of court at which the trial took place. Since the rendition of the Black Case, 41 Tex. Cr. R. 185, 53 S. W. 116, the decisions of this court have been frequent and uniform to the effect’ that to warrant a review of the action of the court in -overruling the motion for new trial, in which it is averred that the jury has-been guilty of misconduct, that the evidence supporting the motion must, by statement of facts or bill of exceptions, be put into the record during the term at which the trial takes place. See Reyes v. State, 81 Tex. Cr. R. 588, 196 S. W. 532; Ferguson v. State, 95 Tex. Cr. R. 213, 253 S. W. 290; also numerous eases following the Black Case, supra, cited in Shepard’s Texas Citations (3d Ed.) p. 356. See, also, Harcrow v. State, 97 Tex. Cr. R. 274, 261 S. W. 1046, and other cases listed in Shepard’s Texas Citations, Supplement, Nov., 1925.

The motion for rehearing is overruled. 
      
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