
    ANDERSON v. STATE.
    (No. 6560.)
    (Court of Criminal Appeals of Texas.
    Dec. 14, 1921.)
    Criminal law &wkey;>l 124(3) — Merits of motion not considered, in absence of evidence on trial.
    Merits of motion for new trial, to which were attached affidavits of several persons expressing the opinion that the accused was of unsound mind, including affidavit of attorney that they had no knowledge of the evidence set out in the affidavits during or after the trial, cannot be considered on appeal, where it is not shown what evidence was before the court and jury.
    Appeal from District Court, Brown County; J. O. Woodward, Judge.
    Claude Anderson was convicted of burglary, and appeals.
    Affirmed.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for burglary; punishment fixed at confinement in the penitentiary for a period of two years. The indictment is regular, and the record is before us- without bill of exceptions or statement of facts.

Attached to the motion for new - trial are the affidavits of several persons expressing the opinion that the appellant was of unsound mind. The affidavit of the attorney who represented him also accompanies the motion. In it is the statement that they had no knowleg'de of the evidence set out in the affidavit before or during the trial Without knowing what evidence was before the court and jury which rendered the judgment and verdict, we are not able to judge tlie merits of the motion.

One of the affiants, a physician, a brother of the appellant, expresses the view that the appellant had been insane for five years; also says that other members of the family had been affected with insanity. Without knowing the facts that were adduced upon the trial, we do not feel authorized to set aside the judgment of conviction. If appellant is insane at this time, the statute makes provision against his incarceration.

The judgment is affirmed. 
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