Conviction is for transporting intoxicating liquor. Punishment is three years in the penitentiary.
There is no merit in the motion in arrest of judgment attacking the indictment because it did not allege that the transportation of the liquor was for the purpose of sale. It is not required that the indictment contain such averment.
The conviction occurred on the 30th day of April. On the 2d day of May a motion for new trial was filed in which it was averred that appellant was denied the right of counsel, and also complaining of the manner of selecting the jury. The motion was not verified by affidavit. It appears never to have been called to the judge's attention and no order was made thereon during the term of court which adjourned on May 3d. On May 22, at a subsequent term of court, appellant called the motion up and presented evidence thereon which is before us by statement of facts. In passing on the motion at that time the judge recited in his order that he was of opinion that the court had no right to then pass upon the motion, *Page 358 but that same was overruled by operation of law when the former term of court adjourned, but desiring to give appellant any right he might have in the matter entered an order overruling the motion on said 22d day of May. It was then for the first time appellant gave notice of appeal to this court, which was nineteen days after adjournment of the term during which he was convicted.
The motion should have been disposed of before the adjournment of the term at which it was filed, and when court adjourned without order upon it it was overruled by operation of law. The order overruling it at a subsequent term is without legal effect. Art. 2025 Vernon-Sayles Civ. Statutes, Art. 839, C. P. P.; Wilcox v. State, 31 Tex. 586; White v. Day,230 S.W. 843 and authorities there collated.
We had examined the statement of facts before observing that the order overruling the motion was made at a subsequent term of the trial court. The grounds stated in the motion were not sustained by the evidence produced, and if the court could legally have acted on it there would have been no error.
No jurisdiction was conferred upon this court by the notice of appeal entered at a subsequent term when the motion for new trial could not be acted upon, hence the appeal is ordered dismissed.
Dismissed.
ON MOTION FOR REHEARING.