
    L. C. Roberts v. The State.
    No. 16557.
    Delivered March 21, 1934.
    Reported in 69 S. W (2d) 1118.
    The opinion states the case.
    
      W. Otoen Daily, of Houston, for appellant.
    
      Lloyd W. Davidson, State’s Attorney, of Austin, for the State.
   MORROW, Presiding Judge.

Theft, a misdemeanor, is the offense; penalty assessed at confinement in the county jail for a period of thirty days.

One milk can of the value of $5.25 and five gallons of milk of the value of twenty cents per gallon were alleged to have been taken by William Middlebrook, O. B. Middlebrook and L. C. Roberts, the appellant. William Middlebrook was acquitted and O. B. Middlebrook was convicted on his separate trial.

Appellant was tried before the court without a jury. Peter Johnson, the owner, testified to the loss and identity of the property.

Deputy sheriffs, Nevelle and Dinkins, made the arrest and recovered the property. It was in an automobile in which the appellant, Roberts, and the two Middlebrooks were riding. The appellant was driving the car. The testimony exculpated William Middlebrook of the offense.

Appellant testified in his own behalf, claiming that he took no part in the theft but allowed the Middlebrooks to put the stolen property in the car which was possessed and driven by him. Appellant said he had no knowledge of the theft of the property.

Testimony was introduced by the state touching tracks tending to show that more than one person took part in the theft. Appellant claimed that newly discovered evidence would have rebutted such testimony. The bill of exception fails to meet the legal requirements touching newly discovered evidence. The evidence is sufficient to support the conviction, and in overruling the motion for new trial the court committed no error.

The judgment is affirmed.

Affirmed.  