
    BOTTS v. STATE.
    (No. 12329.)
    Court of Criminal Appeals of Texas.
    Feb. 6, 1929.
    Cook & Donaghey, of Vernon, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is bigamy; the punishment confinement in the penitentiary for five years.

One question is presented for review. Appellant based his motion for a new trial on newly discovered evidence, and attached thereto a letter claimed to be newly discovered evidence. The motion for a new trial was, sworn to before appellant’s attorney. An attorney for the defendant is not authorized to take affidavits to be used in the case in which he represents the defendant. Garner v. State, 100 Tex. Cr. R. 628, 272 S. W. 167. It is recited in the order overruling the motion for a new trial that evidence was heard. Such 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, 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.  