
    MORAY v. STATE.
    (Court of Criminal Appeals of Texas.
    March 15, 1911. )
    1. Criminal Law (§§ 951,1156*) — Motion for New Trial — Delay—Discretion of Court —Review.
    A motion to strike a motion for new trial, because not filed within two days after the trial, nor until after sentence, is addressed to the sound discretion of the court; and its action in sustaining the motion will not be disturbed, unless the result of prejudice, and injustice resulted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3067-3071; Dec. Dig. §§ 951,-1156.*]
    2. Criminal Law (§ 1134*) — New Triai^Re-view.
    Where the record states that accused himself gave notice of appeal on the day of trial, the court on appeal may look to the record to see if the facts sustain the judgment.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1134.*]
    3. Burglary (§ 28*) — Indictment—Averment —Materiality.
    An averment in an indictment for burglary with intent to steal that accused entered the house of prosecutor with intent to take his goods must be proved, and where there is a total absence of proof that the goods taken were taken without prosecutor’s consent the conviction must be set aside.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. |§ 67-78; Dec. Dig. § 28.]
    Appeal from District Court, Hill County; W. C. Wear, Judge.
    Henry Moray was convicted of burglary, and he appeals.
    Reversed and remanded.
    Will Glover, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      Eor otlier cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

The record in this case is in an unusual condition. The defendant was tried for burglary. He was not represented by an attorney; it appearing that he did not have means to employ one. He was convicted, and his punishment' assessed at five years’ confinement in the penitentiary. On the same day sentence was passed, at defendant’s request, as shown by the court Seven days after trial and sentence, defendant’s friends employed an attorney to represent the defendant, and he at once filed a motion for a. new trial. Later on an amended motion was filed, setting up many grounds why the judgment of conviction should be set aside. The county attorney filed a motion to strike out both the motion and amended motion for a new trial, on the ground that it had not been ■ filed within two days after the date of the trial, nor until after sentence had been passed. The • motion was by the court sustained, and the motion for a new trial stricken from the record. This is a matter lodged in the sound discretion of the court. A court has control of its judgments until the end of the term of the court, and the court has a right to consider a motion filed at any time during term time, if he sees proper to do so; but when a court declines to permit a motion to be filed after the time provided by law, we would not revise his judgment, except in cases where it was shown that such action was the act of prejudice, or from some improper motive, and grave injustice done. In this case we cannot consider the motions for a new trial, as it is not shown that the action of the judge in striking them from the record was not proper exercise of the discretion confided in him.

However, in the sentence passed on defendant on the day of trial we find that the record states the defendant himself gave notice of appeal. We are authorized and compelled to look to the record in this case, and see if the facts sustain the judgment The indictment alleges that defendant did unlawfully, by force, threats, and fraud, and at night, burglariously and fraudulently break and enter a house then and there occupied by W. 0. Caldwell, the said house being then and there the private residence of the said W. C. Caldwell, then and there with the intent of him, the said Henry Moray, fraudulently to take, steal, an(l carry away from and out of said house the corporeal personal property then and there in said house belonging to said W. C. Caldwell, from the possession of the said W. C. Caldwell and without his consent, etc. Under the indictment, it having been alleged that defendant entered the house with the intent to take goods belonging to said Caldwell, it was necessary to prove this allegation. The statement of facts discloses that W. C. Caldwell was not placed on the stand as a witness, and there is a total absence of proof that the- goods taken were taken without his consent. Doubtless this was a mere oversight on the part of the state, but we are not permitted to presume anything as against a defendant.

The judgment is reversed, and the cause is remanded.  