246 S.W. 662 | Tex. Crim. App. | 1922
Lead Opinion
Appellant was convicted in the District Court of Polk County of assault to murder, and his punishment fixed at seven years in the penitentiary.
We find in the record what purports to be a statement of facts. Same is not approved by the trial judge as is required by statute. The State moves to strike out said purported statement of facts for that reason. The motion is well taken, and the statement of facts is stricken from the record.
There are no bills of exception in the record. Appellant filed a motion for new trial based almost entirely upon matters of fact. Said motion was controverted by the State. No testimony being introduced in support of any allegation of fact contained in the motion, the action of the trial court in overruling same would be deemed by us to be correct. Appellant filed a motion in arrest of judgment based upon alleged insufficiency of the indictment. The indictment appears to be in the usual form for assault to murder.
Finding no error in the record, the judgment of the trial court will be affirmed.
Affirmed. *249
Addendum
Appellant files a motion for rehearing in which he attempts to raise a number of questions relative to matters pertaining to the presentment of the indictment and formation of the grand jury. These matters, if available to appellant, should have been presented to the District Court of San Jacinto County prior to the change of venue granted to the District Court of Polk County. It does not appear from the record in the case that any of these questions were ever presented to the lower court. None of the questions appear to be of a fundamental character and same can not be here raised for the first time.
Appellant complains because the record does not state that the trial court informed appellant of his right to make application for a suspended sentence. No issue was made of this in the court below in any way, notwithstanding that appellant was apparently represented by able counsel. We do not think it necessary that the record show such fact affirmatively.
Finding nothing in the motion presenting any error, same will be overruled.
Overruled.