Appellant insists that his contention that there was a communication had with the jury while in retirement, was overlooked by us and not discussed in the original opinion. We regret that the matter is not in such shape as that we could give it consideration, because of lack of proper support in the record. The order of the learned trial judge overruling the motion for new trial recites that he heard "the evidence adduced." What was said evidence? Was it by affidavit or was it oral testimony? Answer to these questions is not found in the record either by bill of exceptions or statement of facts filed during term time. Black v. State, 41 Tex.Crim. Rep.. The recitation in the order of the court below that the court heard evidence is deemed sufficient to show that the truth of the facts set up in the motion for new trial, is controverted. Cade v. State, 96 Tex.Crim. Rep., 258 S.W. Rep., 484. In this case the State controverted the allegations of the motion for new trial by a general denial, and further in its controversy set out certain statements attributed to officers who went to the jury room but which statements and the affidavits containing them are vastly different from the statements contained in the affidavit attached to appellant's motion, both in fact and in legal effect. It being then stated that the court heard evidence upon the presentation of the motion for new trial, and there being nothing to show what said evidence was, what must this court do? When the court hears evidence and upon it decides an issue, he who wishes to complain on appeal of such decision must preserve said evidence and present it to the appellate court, else the assumption of correctness as to the actions of the lower courts will prevail. Affidavits attached to motions are but parts of the pleading. Lopez v. State, 84 Tex.Crim. Rep., 208 S.W. Rep., 167, and Reyes v. State, 81 Tex.Crim. Rep., 196 S.W. Rep., 532, cite numerous authorities on this point. We think appellant misapprehends the opinion in Atkinson v. State,93 Tex. Crim. 305; 247 S.W. Rep., 286, in which, because of the failure to have an attorney to represent him during the trial, we said there were no bills of exception, etc. during thetrial. We find nothing in said opinion to justify the conclusion that the matters complained of in connection with the motion for new trial when appellant did have an attorney, were not properly *Page 380 preserved and here presented. Under the peculiar facts in that case this might or might not have been true and still our conclusions have been the same. Nor do we find anything in Campbell v. State, 37 Tex.Crim. Rep., out of harmony with what we have said. The evidence heard by the trial judge on the motion for new trial in that case seems to have been by affidavits and mention is made of "affidavits introduced" etc. This court has never held that the trial court is without power to hear evidence by affidavits in such case. The act of the trial court held erroneous in the case last referred to was in letting a juror separate from his fellows unaccompanied by an officer. The proposition as to how that question was presented to the appellate court, was not debated in the opinion. The decision in that case was prior to Black v. State, supra.
We have again reviewed the other contentions made by appellant in his motion and have concluded that the matters referred to were properly disposed of in our original opinion.
The motion for rehearing will be overruled.
Overruled.