
    HOGAN v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 24, 1912.)
    1.Criminal Law (§ 1097*) — Record—Statement of Facts — Bill of Exceptions.
    In the absence of a statement of facts, the court on appeal cannot consider matters of evidence referred to in the motion for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2946-2948; Dec. Dig. §
    2.Indictment and Information (§ 176*)— Date of Offense — Burglary.
    An allegation of the date of burglary at night charged in an indictment is material only on the question of limitation, provided the offense is charged to have been committed before the return of the indictment.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 548; Dec. Dig. § 176.*]
    3.Criminal Law (§ 1097*) — Appeai^-Ques-TIONS REVIEWABLE — INSTRUCTIONS.
    An exception to the charge, not setting up any such error as will authorize a conviction on proof not justified by the indictment, cannot be considered, in the absence of a statement of facts.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2941; Dec. Dig. § 1097.*]
    Appeal from District Court, Sabine County; W. B. Powell, Judge.
    Avery Hogan was convicted of burglary, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

There is neither a statement of facts nor bills of. exception found in the record. There is a motion for new trial, which alleges several grounds why it should have been granted in the trial court, none of which, we think, have any merit in them. Most of these refer to matters. of evidence, which cannot be considered, in the absence of statement of facts.

Tlie indictment charges a burglary at night with, intent to commit theft. The burglary is charged to have occurred on the 20th of February. It is contended the evidence shows that it was in fact committed on the 20th of January, inasmuch as the record shows that defendant was in the county jail on the 20th of February, and had been since the 21st of January. This is a matter of no moment, even if the facts were before us and sustained the allegation. The burglary occurred before the presentment of the indictment, which was on the 24th of March. The allegation of the date of the offense is relegated to the question of limitation, provided the offense be charged to have been committed before the return of the indictment.

There is an exception also to the charge, which is very general; but in any event it will not be considered, in the absence of statement of facts, because it does not set up any such error as would authorize a conviction where proof could sustain allegations in the indictment.

The judgment is affirmed.  