
    ADAMS v. STATE.
    (No. 7434.)
    (Court of Criminal Appeals of Texas.
    Dec. 20, 1922.
    Rehearing Denied Jan. 17, 1923.)
    1. Criminal law 1099 (10) — Statement of facts not approved by trial judge cannot be considered on appeal.
    A statement of facts not approved by the trial judge cannot be considered.
    2. Criminal law <S=o 1124(4) — Motion for new trial on ground of denial of counsel held not reviewable where no evidence is in the record.
    Where- a motion for a new trial on the ground that the accused’s counsel withdrew from the case on the day of trial was sworn to by the accused, but no affidavits of other parties were attached thereto, and no evidence concerning the motion appeared in the record or by bill of exceptions, the motion could not be reviewed.
    3. Criminal law <®=>II02 — Motion for new trial on ground of insufficiency of evidence not reviewable after striking out statement of facts.
    Where a statement of facts. was stricken out because lacking the approval of the trial judge, a motion for a new trial on the ground that the evidence was insufficient to support the verdict cannot be considered on appeal.
    On Motion for Rehearing.
    4. Criminal law <§=»1032(2)— Objections to matters of form of indictment, not presented before change of veni^ cannot be presented on appeal.
    Where a prosecution for assault with intent to murder originated in one county, and on the accused’s motion for change of venue was transferred to another, on appeal from a conviction, the accused cannot present for the first time objections based on the method or manner of returning or presenting the indictment and making orders in connection therewith, since such objections should be made prior to the change of venue.
    Appeal from District Court, Polk County; J. D. Manry, Judge.
    H. W. Adams was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    P. R. Rowe, of Livingston, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appellant stands convicted of assault, with intent to murder, upon his wife, his punishment being assessed at 15 years in the penitentiary.

The state moved to strike out the purported statement of facts found in the record for the reason that it is not approved by the trial judge. An inspection of the statement of facts shows the state’s motion to be well taken, and the statement of facts cannot be considered. See section 596, Branch’s Ann. P. C. p. 304, for collated authorities. No bills of exception appear in the record. The judgment was entered on June 5th. A motion in arrest of judgment, or so denominated a motion in arrest of judgment, was filed July 8th. Article 848, C. O. P., provides that a motion in arrest of judgment must be filed within two days. The one in question was not filed until after the expiration of a month from the date of the entry of the judgment. Nothing appears in the record to indicate that the motion in question was ever acted upon, and there is no bill of exception complaining at the refusal of the court to take action, or complaining at the action if any was taken.

The motion for new trial presents only two grounds. The first raises an issue of fact. It is asserted that appellant was deprived of - counsel to represent him; that he had employed counsel who withdrew from the case upon the very day of trial. The motion is sworn to by appellant, but no affidavits of other parties are attached thereto. This ground of the motion was controverted by the state. If any evidence was introduced upon hearing the-motion, it does not appear in the record or by bill of exception. The mere assertion of a fact contained-in the motion, unsupported by proof of matters dehors the record, will not authorize this court to review the question. In fact, nothing is presented to this court for review.

The second ground of appellant’s motion for new trial is that the evidence is not sufficient to support the verdict. The statement of facts having been stricken out, that question, of course, cannot be considered.

The judgment will be affirmed.

On Motion for Rehearing.

LATTIMORE, J.

At a former day of this term an affirmance was ordered for reasons stated in our opinion. Appellant now presents a motion for rehearing based upon the fact that certain statutory requirements regarding the manner of the presentation of an indictment and the making of certain orders in connection therewith do not appear in the transcript on appeal in this record. It is made to appear that this case originated in San Jacinto county, and, upon appellant’s motion for change of venue, same was transferred to Polk county. It is required that objection to all matters of form, in such cases, be presented prior to the transfer of the ease in accordance with the order granting a change of venue. No objection based on the method or manner of returning or presenting the indictment appears to have been made in this ease. We could not tolerate the proposition that one might waive all these matters and go to trial upon an indictment regular in form, and seek to obtain acquittal under the charge, and if the trial went against him in such case, upon.appeal he would be permitted to present objections to the manner and form of the presentation of the indictment and obtain favorable action at our hands. These are questions that should be presented in limine at a time when, if there be any sufficient ground shown, the court below can have the necessary orders entered nunc pro tunc or otherwise, and pass upon the matters presented with the records before him. These matters here complained of may have been, and probably were, in regular form as shown by the records of the district court of .San Jacinto county, and upon objections thoste facts could have been shown. None of the questions now presented are of such fundamental character as to caE for a reversal.

Appellant’s motion 'for rehearing wiU be overruled. 
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