
    Sam Elliott v. The State.
    No. 9571.
    Delivered November 25, 1925.
    Possession of Intoxicating Liquor — New Trial — Misconduct of Jury— Practice in Trial Court.
    Where a motion for a new trial is presented which is predicated on the misconduct of the jury, in order to bring forward the ruling of the trial court, a bill of exception must be preserved to his action, and if evidence is adduced upon the hearing of the motion, a statement of facts containing the evidence adduced must also appear, both the bill of exception' and statement of facts must be filed within term time. If this procedure is not followed this court will presume that the action of the trial court was not erroneous.
    Appeal from the District Court of Potter County. Tried below before the Hon. Henry S. Bishop, Judge.
    Appeal from a conviction for the possession of intoxicating liquor, for the purpose of sale, penalty one year in the penitentiary.
    
      Umphries, Mood & Clayton, for appellant.
    
      Sam D. Stinson, State’s Attorney, and Nat Gentry, Jr., Assistant State’s Attorney, for the State.
   BERRY, Judge.

The offense is possession of intoxicating liquor for the purpose of sale and the punishment is one year in the penitentiary.

The case is before us without a statement of facts. The only question raised by' appellant in his brief is as to the misconduct of the jury. This matter was raised by appellant in his motion for a new trial and the order of the court overruling said motion recites that the court having heard the motion read, the evidence adduced in support of same and the argument of counsel thereon is of the opinion that the law and facts are against said motion and the same should be overruled. From this recitation, we are forced to conclusively presume in the absence of a showing to the contrary, not only that the court heard evidence on the motion for a new trial but that such evidence was sufficient to support his action in overruling the same. Before this presumption - can be overcome, it is necessary that appellant furnish us with a bill of exceptions or statement of facts filed in term time presenting the evidence adduced on said motion for a new trial. If no evidence was introduced on said motion, then it was clearly the duty of the appellant to present to this court his bill of exceptions showing this fact. There is not found in the record a bill of exceptions pertaining to this matter and under this condition of the record, we have no option but to conclude that the court was not in error on the ruling complained of.

Finding no error in the record, it is our opinion that the judgment should be in all things affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.  