
    ADAMS v. STATE.
    (No. 7435.)
    (Court of Criminal Appeals of Texas.
    Dec. 20, 1922.
    Rehearing Denied Jan. 17, 1923.)
    1. Criminal law H 02 — Statement of facts not approved by trial judge will be stricken out.
    On appeal from a conviction of crime, a statement of facts not approved by the trial judge as required by statute will be stricken out on motion by the state.
    2. Criminal law 144(18)— Overruling motion for new trial supported by no evidence would be deemed correct.
    Overruling a motion for a new trial based almost entirely on matters of fact, and which was opposed by the state, in view of.lack of testimony to support any allegation of fact in the motion, where there were no bills of exception in the record, will be deemed to be correct.
    On Motion for Rehearing.
    3. Criminal law ⅞=>1031(3), 1032(2) — Objections to presentment of indictment and formation of grand jury not raised before change, of venue cannot be raised on appeal.
    Where a change of venue from one county to another was granted, objections to the presentment of the indictment and to the formation of the grand jury cannot be first raised on appeal, since they should have been made prior to the granting of the change of venue.
    4. Criminal law <§c»IOS6(l I) — Not necessary for record to show affirmatively that trial court informed accused of right to apply for suspended sentence.
    In a prosecution for assault to murder, where no issue was made in the trial court of the right of the accused to apply for a suspended sentence, it was not necessary for the record to affirmatively show that the trial court informed the accused of his right to apply for a suspended sentence.
    Appeal from District Court, Polk County; J. L. Manry, Judge.
    H. W. Adams was convicted of assault to murder, and he appeals.
    Affirmed.
    P. R. Rowe, of Livingston, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Polk county of assault to murder, and his punishment fixed at seven years in the penitentiary. We find in the record what purports' to be a statement of facts. Same is not approved by the trial judge as is required by statute. The state moves to strike out said purported statement of facts for that reason. The motion is weU taken, and the statement of facts is stricken from the record.

There are no bills of exception in the record. Appellant filed a motion for a new trial based almost entirely upon matters of fact. Said motion was controverted by the state. No testimony being introduced in support of any aEegation of fact contained in the motion, the action of the trial court in overruling same would be deemed by us to be correct. Appellant filed a motion in arrest of judgment based upon alleged insufficiency of the indictment. The indictment appears to be in the usual form for assault, to murder.

Finding no error in the record, the judgment of the trial court will be affirmed.

On Motion for Rehearing.

Appellant files a motion for rehearing in which he attempts to raise a number of questions relative to matters pertaining to the presentment of ttoé indictment and formation of the grand jury. These matters, if available to appellant, should have been presented to the district court of San Jacinto county prior to the change of venue granted to the district court of Polk county, it does not appear from the record in the case that any of these questions were ever presented to the lqwer court. None of the questions appear to be of a fundamental character, and same cannot be here raised for the first time.

Appellant complains because the record does not state that the trial court informed appellant of his right to make application for a suspended sentence. No issue was made of this in the court below in any way, notwithstanding that appellant was apparently represented by able counsel. We do not think it necessary that the record show such fact affirmatively.

Finding nothing in the motion presenting any error, .same will be overruled. 
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