
    BRADFORD v. STATE.
    (No. 6476.)
    (Court of Criminal Appeals of Texas.
    Nov. 23, 1921.
    Rehearing Denied Dec. 21, 1921.)
    Criminal law <&wkey;>l 144(18) — Denial of new trial because of discrimination in forming grand jury presumed correct where not supported by evidence on appeal.
    To consider the question of the overruling of motion for new trial on appeal, because of the discrimination in forming a grand jury, the averment in the motion must be supported by evidence, and in the absence of such evidence the ruling of the trial court is presumed to be correct.
    Appeal from District Court, Bexar County; S. G. Tayloe, Judge.
    Chas. Bradford was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    R. A. Campbell, of San Antonio, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Appellant was convicted of assault with intent to murder. Punishment fixed at confinement in the penitentiary for a period of seven years.

The point was made in -the trial court and is brought here for review that appellant, being a negro, was the subject of intentional discrimination in the exclusion of negroes from the grand jury. The question was raised for the first time on motion for new trial. Whether it is waived by failing to present it at an earlier stage of the proceedings we need not consider, for the reason that the bills preserved failed to disclose that any evidence was introduced supporting the averment in the motion. It is intimated in the bills that the court excluded evidence, but the nature and character of the evidence is not revealed. It was incumbent upon the appellant to sustain his attack upon the indictment and the organization of the grand jury by evidence. His failure to do so deprives this court of the opportunity to determine whether his motion was true or not. The trial judge having overruled it, and in' the absence of knowledge of facts upon which he acted, we must presume that his ruling is correct. Whitney v. State, 43 Tex. Cr. R. 197, 63 S.W. 879; Hemphill v. State, 75 Tex. Cr. R. 63, 170 S. W. 155; Vernon’s Texas Crim. Statutes, vol. 2, p. 180, art. 409, and note. .

The judgment is affirmed.  