Appellant stands convicted of assault with intent to murder upon his wife, his punishment being assessed at fifteen years in the penitentiary.
The State moved to strike out the purported statement of facts found in the record for the reason that it is not approved by the trial judge. An inspection of the statement of facts shows the State's motion to be well taken, and the statement of facts can not be considered. (See Sec. 596, Branch's Ann. P.C., p. 304, for collated authorities). No bills of exception appear in the record. The judgment was entered on June 5th. A motion in arrest of judgment, or so denominated a motion in arrest of judgment, was filed July 8th. Art 848 C.C.P., provides that a motion in arrest of judgment must be filed within two days. The one in question was not filed until after the expiration of a month from the date of the entry of the judgment. Nothing appears in the record to indicate that the motion in question was ever acted upon, and there is no bill of exception complaining at the refusal of the court to take action, or complaining at the action if any was taken.
The motion for new trial presents only two grounds: the first raises an issue of fact. It is asserted that appellant was deprived of counsel to represent him; that he had employed counsel who withdrew from the case upon the very day of trial. The motion is sworn to by appellant but no affidavits of other parties are attached thereto. This ground of the motion was controverted by the State. If any evidence was introduced upon hearing the motion, it does not appear in the record or by bill of exception. The mere assertion of a fact contained in the motion unsupported by proof of matters dehors the record, will not authorize this court to review the question. In fact, nothing is presented to this court for review. The second ground of appellant's motion for new trial is that the evidence is not sufficient to *Page 251 support the verdict. The statement of facts having been stricken out, that question, of course, can not be considered.
The judgment will be affirmed.
Affirmed.
ON REHEARING January 17, 1923.