Ash v. State , 93 Tex. Crim. 189 ( 1922 )

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.Crim. Rep.. "Breaking" as that term is used in the law of burglary is defined in Article 1308 of our Penal Code to be an 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. Crim. 186, 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.Crim. Rep., 144 S.W. Rep., 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 his 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.

Overruled.