
    HILLIARD v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 15, 1911.)
    Okimi^al Law (§ 1097*) — Review—Failure to File Statement oe Facts.
    On review of a conviction, the court can determine neither the question as to whether the verdict is contrary to law and the evidence, nor whether there is a variance between the indictment and the evidence, where there is no statement of facts .in the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2862, 2864, 2926-2947; Dec. Dig. § 1097.*]
    Appeal from District Court, Travis County; George Calhoun, Judge.
    Will Hilliard was convicted of burglary, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary; his punishment being assessed at five years’ confinement in the penitentiary.

Appellant sets forth in his motion for new trial several reasons why the judgment ■should be reversed. The first is that the verdict of the jury is contrary to the law and the evidence; second, that there is a material variance between the allegations in the indictment and the evidence adduced upon the trial, in this: That said indictment ■charges the burglary to have been committed by entering a house, and does not allege the house to be a private residence, whereas, the testimony developed the fact and was positive that said house was a private residence, hence the proof was of a separate and distinct offense than that alleged. Both grounds would be serious, if true; but we are unable to decide the matter, because the record does ■not contain a statement of facts.

Finding no reversible error in the record ■as presented, the judgment is affirmed.  