Sale of Intoxicating Liquor — New Trial — Newly Discovered Evidence — Practice on Appeal.
Where a motion for a new trial is made in the court below on the ground of newly discovered evidence, and it is recited in the order overruling the motion, that evidence was heard by the trial court, if the evidence is not brought forward we must indulge the presumption that the courts action was correct. See Sykes v. State, 2 S.W.2d 863.
CHRISTIAN, JUDGE. —
The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for two years.
No bills of exception are brought forward. A state's witness testified that appellant sold him a pint of whiskey. Testifying in his own behalf appellant denied that he made the sale. In exercising their prerogative of passing upon the credibility of the witnesses and the weight to be given their testimony the jury were warranted in returning a verdict of guilty.
Motion for a new trial was based on newly discovered evidence. It is recited in the order overruling the motion that evidence was heard by the trial court. The evidence is not brought forward. We must therefore indulge the presumption that the court's action in overruling the motion was correct, and that the trial court acted upon evidence which was sufficient to justify his action. Sykes v. State, 2 S.W.2d 863.
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.