
    ELLIOTT v. STATE.
    (No. 9571.)
    (Court of Criminal Appeals of Texas.
    Nov. 25, 1925.)
    Criminal law <&wkey;l 144(18-) — Overruling motion for new trial conclusively presumed correct, in absence of bill of exceptions or statement of facts.
    Where trial court’s order overruling motion, for new trial on ground of misconduct of jury-recited that, having read evidence and argument of counsel, court is of opinion that law and facts are against motion, held, that, in absence of bill of exceptions or .statement of facts presenting evidence adduced on such motion, appellate court must conclusively presume that evidence was sufficient to support overruling of motion, and that trial- court was not in error in so doing.
    Commissioners’ Decision.
    Appeal from District Court,- Potter County; Henry S. Bishop, Judge.
    Sam 'Elliott was convicted of possessing intoxicating liquor for purpose of sale, and appeals.
    Affirmed.
    Umphres, Mood & Clayton, of Amarillo, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

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. Prom 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.

PER CURIAM.

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.  