
    (41 South. 361.)
    No. 16,137.
    STATE v. WARREN.
    (June 4, 1906.)
    1. Criminal Law — Appeai^-Record.
    Where an alleged overt act on the part of' the prosecuting witness is relied on as a defense to the charge of shooting with intent to kill, and neither the recitals of the bill of exception nor any evidence annexed show the relation, in point of time ox- circxxmstan.ee, between such act and the shooting, this court is obliged to accept as correct, the ruling of. the trial judge to the effect that no overt act was proved.
    [Ed. Note. — For cases in point, see vol. 15, Cent. Dig. Criminal Law, §§ 2938, 3014, 3030.]
    2. Same — New Trial.
    , A motion for new trial which merely presents the theory of the defense as to the facts, brings up nothing upon which this court can act.
    3. Same — 'Verdict.
    Where the record shows that the verdict was properly indorsed on the back of the bill of information, the fact that it was entered on the minutes without the name and official capacity of the foreman being added is immaterial.
    (Syllabus by the Court.)
    Appeal from Twenty-First Judicial District Court, Parish of Iberville; Calvin Kendrick Seliwing, Judge.
    George Warren was convicted of shooting with intent to kill, and appeals.
    Affirmed.
    John Howell Pugh, for appellant. Walter Guión, Atty. Gen., and Albin Provosty, D-ist. Atty. (Lewis Guión, of counsel), for the State.
   MONROE, J.

1. Whilst defendant was being tried for shooting with a dangerous weapon, with intent to kill, his counsel reserved a bill of exceptions from which it appears that the prosecuting witness was asked, on cross-examination, whether he had not “advanced on the accused with a hickory stick in his hand, and in a threatening manner,” to which he answered in the affirmative; whereupon, or later, he was asked “If he had not on one occasion shot a negro, on the Front Place, under similar circumstances, which fact was known to the accused,” to which it was objected that a proper foundation had not been laid, and the objection having been sustained on the ground as stated by the court that no ‘overt act had been shown the bill was reserved. No testimony was taken down, and we have no other information as to the matter at issue than as thus stated in the bill. We are not informed of the relation in point of time or circumstances between- the alleged overt act, on the part of the prosecuting witness, and the shooting, by the accused, and, in the absence of such information, we are compelled to accept as correct the ruling of the trial judge that no overt act was proved.

2. We find in the record a motion for a new trial and a bill of exceptions to the overruling of the same, but the motion merely presents the theory of the defense, and challenges the correctness of the verdict, because that theory was not adopted, thus presenting the issues of fact which were decided by the jury, and as to which this court is without jurisdiction.

3. We also find a motion in arrest of judgment based upon the ground that the minutes of the court read, “Guilty as charged,” instead of “Guilty as charged. S. D., Foreman.” The record, however, shows that the verdict was indorsed on the back of the bill of information, with the signature of the foreman attached in due form.

The judgment, appealed from is accordingly affirmed.  