
    SCROGGINS v. STATE.
    (No. 12685.)
    Court of Criminal Appeals of Texas.
    May 22, 1929.
    W. B. Howard, of Childress, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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 whisky. 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 overfuling the motion was correct, and that the trial court acted upon evidence which was sufficient to justify his action., Sykes v. State, 109 Tex. Cr. R. 39, 2 S.W.(2d) 863.

The judgment is affirmed.

PER CURIAM. 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.  