
    CALDWELL v. STATE.
    (No. 4248.)
    (Court of Criminal Appeals of Texas.
    Nov. 22, 1916.
    Rehearing Denied Dec. 20, 1916.)
    Criminal Law <&wkey;1144(18) — Appeal—Review-Denial op Motion por New Trial —Presumption.
    Where defendant, convicted of crime, moved for new trial on the ground of newly discovered testimony, the affidavits being in the record, but the trial court states that he heard evidence in regard to the matter' and found •against defendant, the Court of Criminal Appeals cannot review the question, in the absence of the testimony on which the trial judge based his finding; the presumption obtaining that the 'court ruled correctly.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2901, 3036; Dec. Dig. @= 1144(18).]
    Appeal from District Court, Bed Biver County; Ben H. Denton, Judge.
    Emerson Caldwell was convicted of arson, and he appeals.
    Judgment affirmed.
    Travis T. Thompson, of Clarksville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of arson, his punishment being assessed at five years’ confinement in the penitentiary.

The evidence is conflicting. The state relied upon accomplice’s testimony and such corroboration as was obtainable. We are of opinion that the corroboration is sufficient under the statute, and tends to connect the defendant with the burning. The accomplice makes out a clear case, not only against appellant but himself.

Newly discovered testimony was set up in the motion for a new trial, supported by a couple of affidavits. The court signs the bill of exceptions by stating that he heard testimony with reference to these affidavits and this matter on the motion for new trial, and ruled against the defendant. This evidence is not before this court in any way, either by bill of exceptions or in statement of facts. The affidavits are in the record, but the court practically eliminates their consideration by stating that he heard evidence in regard to the matter set up, and found against appellant. We think this disposes of the matter adversely to appellant. We cannot review it in the absence of the testimony upon which the judge based his finding. If the defendant believed there was error in this ruling, the testimony should have been before this court as a predicate for its action. In the absence of the testimony the presumption will obtain that the court ruled correctly. This is the only matter relied upon, it seems, by appellant, and it is not well taken.

The judgment will be affirmed.

HABPEB, J., absent. 
      ;gun>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     