Opinion
No. 413.
Decided February 9, 1910.
Burglary — Variance — Statement of Facts — Practice on Appeal.
Where upon appeal from a conviction of burglary no statement of facts appeared in the record, a variance between the allegations contained in the indictment and the proof, touching the name of the person whose house is alleged to have been burglarized, could not be considered.
Appeal from the Criminal District Court of Harris. Tried below before the Hon. Norman G. Kittrell.
Appeal from a conviction of burglary; penalty, five years imprisonment in the penitentiary.
The opinion states the case.
No brief on file for appellant.
John A. Mobley, Assistant Attorney-General, for the State.
Appellant suffered, in the Criminal District Court of Harris County, on the 27th of September, 1909, a conviction on a charge of burglary, and his punishment was assessed at confinement in the penitentiary for a term of five years. There is in the record no statement of the facts, nor any bills of exception.
The motion for new trial complains that there is a variance between the allegations contained in the indictment, and the proof, touching the name of the person whose house is alleged to have been burglarized. We are unable to pass on this question in the absence of a statement of the facts, nor are we authorized to assume from a mere statement of the fact in the motion, that there was in fact such a variance. As presented there is no question which we are authorized to pass on and it must follow that the judgment should be affirmed, and it is accordingly so ordered.
Affirmed.
Davidson, Presiding Judge, absent.