
    SYKES v. STATE.
    (No. 11366.)
    Court of Criminal Appeals of Texas.
    Feb. 15, 1928.
    1. Criminal law <&wkey;4 144(18) — 'Where order denying new trial recites evidence was heard, that affidavits attached to motion were considered, or were alone consid'ered, will not be presumed.
    Where order overruling motion for new trial in criminal prosecution recites that evidence was heard, it will not be presumed on appeal that affidavits attached to motion were considered, or that they alone were considered.
    2. Criminal law <&wkey;>l 144(18) — Where record indicates evidence was heard, appellate court presumes denying new trial was correct, and based on sufficient evidence.
    On appeal in criminal prosecution, where record indicates that trial court heard evidence on motion for new trial, appellate court must presume that trial court’s action.in overruling motion was correct, and that such court acted on evidence sufficient to justify its action.
    Commissioners’ Decision.
    Appeal from District Court, Liberty County; Thos. B. Coe, Judge.
    Willie Sykes was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    Blain & Jones, of Beaumont, for appellant. A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

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

The state’s witness, Joe Mitchell, testified positively to the purchase of a pint of whis-ky 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. Crouchette v. State, 99 Tex. Cr. R. 572, 271 S. W. 99; Hughey v. State, 98 Tex. Cr. R. 413, 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.

PER OURIA&r. 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. 
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