ON PETITION TO RECALL RULING OF COURT ON PETITION FOR REHEARING. Appellant has filed his petition to recall the ruling of this court on the petition for a rehearing. He assigns as cause that this court failed, in the original opinion and in the 19-21. opinion overruling the petition for a rehearing, to decide the question as to whether or not specification No. 1 of appellant's motion for a new trial was properly presented without the aid of any affidavits, there being no counter-affidavits *Page 562 filed. The motion for a new trial and the causes therefor shall be in writing; and any such cause not disclosed in the record shall be sustained by affidavit. § 2325 Burns 1926, cl. 9. This cause for a new trial is stated in the original opinion. It was supported by four affidavits, one supporting affidavit executed by the defendant, two supporting affidavits executed by his attorneys, and another affidavit of defendant stating that the matters set out in cause No. 1 for a new trial were true. These affidavits were all a part of the motion for a new trial, and none of them were brought into the record by a bill of exceptions. In Alyea v. State (1926), 198 Ind. 364,152 N.E. 801, 153 N.E. 775, this court said: "There is no proof of the facts thus alleged in appellant's affidavit to be discharged. The record . . . is silent on the subject and there is no bill of exceptions to show what proof, if any, was offered to support such allegations. The act of 1915, Acts 1915 p. 122, § 2332 Burns 1926, makes a motion a part of the record without a bill of exceptions but it does not require the court to take the allegations of fact in such motion as being true unless they have been shown to be true by evidence. Recitals of fact in a motion require proof the same as an allegation of fact in any other pleading or paper." It does not appear from the record what evidence, if any, was heard on this question; and, there being nothing in the record which affirmatively shows that the trial court erred in such ruling, the ruling must be presumed by the court to be correct. Woodward v. State (1910), 174 Ind. 743, 93 N.E. 169; Alyea v. State, supra; Greer v. State (1929),ante 434, 168 N.E. 458.
The petition of appellant to recall ruling on petition for rehearing is denied. *Page 563