
    ASH v. STATE.
    (No. 7167.)
    (Court of Criminal Appeals of Texas.
    Nov. 29, 1922.
    Rehearing Denied Jan. 3, 1923.)
    1. Criminal law &wkey;>l092(6) — Bill of exceptions as to testimony heartt on motion for new trial must be filed during term.
    A bill of exceptions to misconduct of the jury, containing a statement of the facts heard' upon presentation of motion for new trial, must be filed during term time, and where the court adjourned on April 29, 1922, bill of exceptions not filed until June 16, 1922, was filed too late.
    On Motion for Kehearing.
    2. Criminal law &wkey;l 144(18) — Appellate court will not review denial of new trial, in absence of evidence heard on motion.
    In the absence of the testimony heard by the court at the time the motion for new trial is presented, the appellate court will accept as correct the action of the trial court in overruling the motion for new trial.
    3. Indictment and information &wkey;>ll(l)— Error in notation on indictment as to offense charged held not reversible error.
    An error in the notation of the return of the indictment, wherein the indictment was named as being for burglary, but the number of the case was correctly stated and corresponded with that of the indictment, which was for attempted burglary, held not reversible error.
    ©=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    Mervin Ash was convicted of burglary, and appeals.
    Affirmed.
    Warren W. Moore, of Austin, for appellant.
    It. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Travis county of the offense of burglary, and his punishment fixed at two years in the penitentiary. There is no brief on file for appellant.

The only complaint of any part of the proceedings in the trial below which appears in the record is evidenced by a bill of exceptions complaining of misconduct of the jury. All of the matter relating to this complaint is set forth in said bill of exceptions, consideration of which is objected to by our Assistant Attorney General upon the ground that said bill was filed in the court below too late. Examination of the record) discloses that the term of the trial court adjourned April 29, 1922. The bill of exceptions referred to, which sets out the testimony heard by the trial court upon presentation of motion for new trial, was not filed until June 16, 1922. Under all the authorities and the unbroken line of decisions of this court, a bill of exceptions taken to such action, and which contains a statement of the facts heard upon presentation of motion for new trial, must be filed during term time. See page 833, Vernon’s O. C. P., for citation of authorities. Reese v. State, No. 6806, (Tex. Cr. App.), 247 S. W. -, opinion Nov. 29, 1922.

The indictment is in regular form, and it appears that a plea of guilty was entered by the appellant, and the lowest term awarded him by the jury.

No error appearing in the record, the judgment will be affirmed.

On Motion for Rehearing.

Appellant assails the correctness of our-holding that the indictment herein was in regular form, and insists that same is insufficient. Said indictment follows the form laid down by Mr. Branch in his Annotated Penal Code, p. 1293, in the second count there-set out. See Jones v. State, 53 Tex. Cr. R. 470, 110 S. W. 748. “Breaking,” as that term is used in the law of burglary, is defined in article 1308 of our Penal Code to bean entry made with actual force. A'charge that one attempted to break and enter a-house would seem, therefore, to necessarily charge an attempt to enter by force. It is-also urged that we were in error in holding, that the statement of the facts adduced upon the hearing of appellant’s motion for new trial could not be considered by us because same was not filed during the term. Since Black v. State, 41 Tex. Cr. R. 186, 53 S. W. 116, this court seems to have uniformly held that statements of facts and bills of exception relating to matters of testimony heard in support of a motion for new trial- must be filed during term time. The matter is fully discussed in Knight v. State, 64 Tex. Cr. R. 541, 144 S. W. 967, and our opinion on this point in this case is in consonance with decisions too numerous to mention.

Appellant insists that the matter is sufficiently presented by this motion for new trial which concludes with a statement that the refusal of said new trial'is excepted to by the appellant, and that this took place during term time. The statement of such matters in the motion for new trial would not be tantamount to a showing of the existence of such, facts, nor could we conclude the truth of facts set up in such motion for new trial in the absence of a statement of the evidence heard. In the absence of the testimony heard by the court at the time the motion for new trial is presented, the rule is that this court accepts as correct the action of the trial court in overruling the motion for new trial, and we must conclude that such action was supported by the testimony heard.

We do not think any substantial error appears in the notation of the return of the indictment, wherein the indictment was named as being for burglary. The number of the case was correctly stated and corresponds with that of the indictment, which appears in full in the transcript herein, and from which it clearly appears that the indictment was for attempt at burglary.

Believing the case was correctly disposed of upon the original hearing, appellant’s motion for rehearing will be overruled.  