1. — Robbery — Evidence.
In prosecution for robbery, the evidence supports the verdict.
2. — New Trial — Jury, Misconduct of — Practice.
Where it appears from the order overruling the motion for new trial evidence was heard upon the motion, the evidence not having been brought forward, the question is not properly presented for review.
CHRISTIAN, JUDGE. —
The offense is robbery; the punishment, confinement in the penitentiary for six years.
The injured party, John Humphrey, testified that on September 15, 1931, at 10:45 p. m., appellant and another man robbed him of $18 and his watch, while he was riding on a highway near Amarillo. According to his version, the parties drove their automobile practically against his car and forced him to stop. Exhibiting a pistol, appellant and his companion took his money and watch, threw his car keys away and punctured his casings. Appellant had a stub thumb, which the injured party observed while appellant was holding the pistol in his hand. A young lady who was in the car with the injured party had known appellant for several months, it appearing that she and appellant worked for the Harmon Motor Company in Amarillo. She positively identified appellant as being one of the participants in the robbery.
Testifying in his own behalf, appellant denied that he was on the highway at the time the offense was committed. He said he was at his rooming house and had retired for the night. He declared that he did not leave his room on the night in question. The owner of the rooming house, as well as other witnesses, testified to having seen appellant in the rooming house at 10:45 p. m.
The jury were warranted in rejecting appellant's defensive theory. The evidence is sufficient to support the conviction.
In his amended motion for a new trial, appellant alleged that the jury were guilty of misconduct. He attached the affidavits of no jurors to the motion. It appears from the order overruling the motion for new trial that the court heard evidence. The evidence is not brought forward.
The judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.