
    Willie Sykes v. The State.
    No. 11366.
    Delivered February 15, 1928.
    Sale of Intoxicating Liquor — New Trial — Action of Trial Court — Presumed Correct.
    Where appellant moved for a new trial on the ground of newly discovered evidence, and attached the affidavits of the absent witnesses to his motion, and where the record indicates that the court below heard evidence on the issue, this court must presume that the court’s action in overruling the motion was correct, in the absence of a showing to the contrary.
    Appeal from the District Court of Liberty County. Tried below before the Hon. Thomas B. Coe, Judge.
    Appeal from a conviction for the sale of intoxicating liquor, penalty one year in the penitentiary.
    The opinion states the case.
    
      Blair & Jones of Beaumont, for appellant.
    A. A. Dawson, State’s Attorney, for the State.
   CHRISTIAN, Judge.

The offense is selling intoxicating liquor, punishment confinement in the penitentiary for one year.

The state’s witness, Joe Mitchell, testified positively to the purchase of, a pint of whisky from appellant.

One question is presented for review. Appellant based his amended motion for a new trial on newly discovered evidence, and attached to said motion the affidavits of three witnesses whose testimony he claimed to be material. The order of the court overruling the motion for a new trial recites that evidence was heard thereon. No evidence is brought before this court either by bill of exception or statement of facts. When the order of the court overruling a motion for a new trial recites that evidence was heard, it will not be presumed on appeal that the affidavits attached to the motion were considered or that they were alone considered. Where the record indicates that the court heard evidence on the issue, this court must presume 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. Crouchett v. State, 271 S. W. 99; Hughey v. State, 265 S. W. 1047. Applying the rule to the instant case, we presume that the court’s action in overruling the motion for a new trial was correct.

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.  