Opinion
No. 15547.
Delivered January 18, 1933.
1. — Motion for Arrest of Judgment — New Trial — Issue of Fact — Evidence.
In prosecution for burglary, where averments in motion in arrest of judgment and for new trial were denied under oath by the state, an issue of fact was raised requiring hearing of evidence.
2. — Evidence — Statement of Facts — Bill of Exception — Procedure.
Where testimony was not brought before appellate court by statement of facts or bill of exception, it must presume that the trial court was correct in overruling motion for new trial and motion in arrest of judgment.
3. — Verdict — Jury — Procedure.
It is too late after verdict to complain for the first time of errors committed in the empaneling or organizing of the jury.
Appeal from the District Court of McLennan County. Tried below before the Hon. D. W. Bartlett, Judge.
Appeal from a conviction for burglary; penalty, confinement in the penitentiary for two years.
Affirmed.
The opinion states the case.
Norton Fox and Eugene McNamara, both of Waco, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction is for burglary, punishment being two years in the penitentiary.
No statement of facts is brought forward. By motion in arrest of judgment, sworn to by appellant, and also by amended motion for new trial, also sworn to by appellant, an attempt is made to challenge the jury which tried the case as having been drawn under the "jury wheel" law of McLennan county, which was held unconstitutional in Smith v. State, 120 Tex.Crim. Rep., 49 S.W.2d 739, and Whatley v. State, 121 Tex. Crim. 457, 51 S.W.2d 1116. Both motions raise an issue of fact, to establish which it became necessary for the court to hear evidence. Especially would this be true where, as in the present case, the averments in the motions were denied under oath by the state. If any testimony was heard, it is not brought before us either by bill of exception or statement of facts. In such case we must presume that the trial court was correct in overruling the motion. Furthermore, no question in limine was raised regarding the jury, and we see no reason why the general rule would not be applicable, which is that it is too late after verdict to complain for the first time of errors committed in impaneling or organizing the jury. Branch's Ann. Tex. P. C., sec. 524, and cases cited thereunder, among them being Ellington v. State, 63 Tex.Crim. Rep., 140 S.W. 1101; Texas Jurisprudence, vol. 4, sec. 34; Cardena v. State, 94 Tex.Crim. Rep., 251 S.W. 225.
The judgment is affirmed.
Affirmed.