
    H. W. Adams v. The State.
    
      No. 7435.
    Decided December 20, 1922.
    Rehearing denied January 17, 1923.
    1. — Assault to Murder — Statement of Facts.
    Where the alleged statement of facts was not approved by the trial Judge it must be stricken out upon motion of the State.
    
      2. —Same—Motion for a New Trial — Bills of Exception.
    In the absence of bills of exception, a. motion, for a new trial based almost entirely upon matters of fact controverted by the State, the same cannot be considered on appeal.
    3. —Same—Indictment—Motion in Arrest of Judgment.
    Where, upon trial of assault with intent to murder, the indictment is in legal form, a motion in arrest of judgment was correctly overruled.
    4 — Same—Rehearing—Presentment of, Indictment — Formation of Grand Jury — Change of Venue.
    A complaint as to the presentment of the indictment and formation of the grand jury should have been presented to the lower court prior to the change of venue, and there being no fundamental error the judgment must be affirmed.
    5. — Same—Suspended Sentence — Practice on Appeal.
    Where no issue as to suspended sentence was made in the court below, notwithstanding appellant was represented by able counsel, the matter cannot be reviewed on :.ppeal.
    Appeal from the District Court of Polk. Tried below before the Honorable J. L. Manry.
    Appeal from a conviction of assault to murder; penalty, seven years imprisonment in the penitentiary.
    The opinion states the case.
    
      P. R. Rowe, for appellant.
    
      R. G. Storey, Assistant Attorney General, for the State.
   LATTIMORE, Judge.

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 well 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 new trial based almost entirely upon matters of fact. Said motion was controverted by the State. No testimony being introduced in support of any allegation 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.

Affirmed.

ON REHEARING

January 17, 1923.

LATTIMORE, Judge.

Appellant files a motion for rehearing in which he attempts to raise a number of questions relative to matters pertaining to the presentment of the 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 lower court. None of the questions appear to be of a fundamental character and same can not 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.

Overruled.  