
    NOLAN v. STATE.
    (No. 4447.)
    (Court of Criminal Appeals of Texas.
    April 25, 1917.)
    1. Criminal Law <&wkey;958(3) — New Trial — Affidavit — Sufficiency.
    Whore defendant pleaded guilty, and error is assigned to failure to grant a new trial on the ground of newly discovered evidence that the watch stolen was worth less than $50, in the absence of a statement in the affidavit to support the motion of a sufficient reason for failure to produce the alleged new evidence at the trial, the appellate court is not authorized to order a reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2399, 2400.]
    2. Criminal Law <&wkey;1144(18) — Appeai>-Re-view — Presumptions.
    Where it appears from an order overruling a motion for new trial that the court heard evidence as to an alleged agreement with the assistant district attorney that if appellant would plead guilty, no opposition would' be made to his application for a suspended sentence, and that on the trial there was a failure to comply with the agreement, in the absence of a bill of exceptions or statement of facts bringing such evidence before the appellate court, it will be presumed that the conclusion of the trial court that the allegation was not sustained was correct.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2901, 3036.]
    
      3. Criminal Law <&wkey;1182 — Review—Record.
    As appellant’s assignments present no error, and no fundamental error appears in the record, the judgment of the lower court must be affirmed.
    [E'd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3202-3214.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Jesse Nolan was convicted of theft of a watch, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was indicted for theft of a watch, and on Ms plea of guilty his punishment was assessed at two years’ confinement in the state penitentiary.

There are no bills of exceptions, but in a motion for a new trial appellant relied up'on newly discovered evidence to the effect that the value of the watch was less than $50. Attached to the motion is what purports to be an affidavit of a witness who would testify that the value of the watch in his opinion was not more than $30. The jurat to the purported affidavit is not signed by any officer, but aside from that there is a failure to give any sufficient reason for the absence of the testimony on the trial. The indictment charged the value of the watch to be $65, and in the absence of a sufficient reason for failure to discover and produce the alleged new evidence at the trial this court would not be authorized to order a reversal on this assignment. Branch’s Ann. P. C. § 2490, p. 1348; Vernon’s Ann. O. O. P. art. 837, p. 779, and cases cited.

It is also stated in the motion for a new trial that appellant went to trial upon an agreement with the assistant district attorney that if appellant would enter a plea of guilty, no' opposition would be made to appellant’s application for a suspended sentence, and that the assistant district attorney agreed to explain to the jury the suspended sentence law in an impartial manner, and that on the trial there was a failure to comply with the agreement. This allegation of fact is not supported by either sworn, pleading or evidence so far as disclosed by the record. It appears from the order on the motion for a new trial that the court heard evidence, and in the absence of any bill of exceptions or statement of facts bringing the evidence thus heard before this court, the presumption must be indulged that the conclusion reached by the trial court that the .allegation was not sustained was correct.

Appellant’s assignments present no error, and, no fundamental error appearing in the record, the judgment of the lower court must be affirmed; and it is so ordered. 
      <S=»For otter oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     