
    MELTON v. STATE.
    (No. 10036.)
    (Court of Criminal Appeals of Texas.
    March 24, 1926.)
    1. Criminal law &wkey;»l099(6).
    Statement of facts, filed several weeks after time allowed by law and order of trial court, will not be considered by appellate court.
    2. Criminal law <@=»594(2), 598(2), 1097(3)— Denial of continuance for absence of witnesses will not be heldi error, in absence of statement of facts, where nonresidence of one witness and lack of due diligence as to other appear.
    Error cannot be predicated on denial of application for continuance for absence of two-witnesses, where relevancy of their testimony cannot be determined, because of absence of' statement of facts, and nonresidence of one witness and lack of due diligence as to other is shown.
    3. Criminal law t&wkey; 1097(1) — Alleged indirect reference to accused’s failure to testify cannot be held error, where court, because of' absence of statement of facts, cannot say that no one other than accused was In position to contradict alleged undenied testimony..
    Argument that' certain witnesses testified they had seen accused take blanket out of ear, and that no one had denied it, cannot be held' error as an indirect reference to accused’s failure to testify, where bill fails to show, and' court cannot determine, because of absence of statement of facts, that no one other than accused was in position to contradict witnesses mentioned. \
    
      4. Criminal law <&wkey;>I 144(13) — Evidence is as--sumed to have been sufficient to sustain judgment of conviction, in absence of statement of facts.
    Appellate court, without knowledge of proof made, because of absence of statement of facts, must assume evidence to have been sufficient to sustain judgment of conviction.
    Appeal from Lamar County Court; W. Dewey Lawrence, Judge.
    George Melton was convicted of misdemeanor theft, and he appeals.
    Affirmed.
    Sturgeon & Wiygul, of Paris, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

The offense is misdemeanor theft; punishment fixed at a fine of $25, and confinement in the county jail for a period of 30 days.

We are unable to consider the statement of facts for the reason that'it was filed several weeks after the time allowed by law and by order of the trial court.

There is an application for a continuance on account of the absence of two witnesses. One of them, according to the qualification, was not a resident of the state; for the other there was not sufficient diligence. Moreover, the relevancy or materiality of their testimony cannot be determined in the absence of a statement of facts.

There is a complaint of an indirect reference of the appellant’s failure to testify. The argument was to the effect that certain witnesses testified that they had seen the appellant take a blanket out' of the car, and that no one had denied it. The bill ffiils to show, and we are unable to determine, in the absence of a statement of facts, that no one other than the appellant was in a position to contradict the witnesses mentioned. Pickerell v. State, 198 S. W. 303, 82 Tex. Cr. R. 68; Boone v. State, 235 S. W. 580, 90 Tex. Cr. R. 374.

Another bill complains of the sufficiency of the evidence. The trial court, after hearing the evidence, having approved the judgment, this court, without knowledge of the proof made, must assume it to have been sufficient.

The judgment is affirmed. 
      <¡&wkey;For other-cases see same topic and KEY-NUMBER in all.Key-Numbered Digests and Indexes
     