
    VOLANTINO v. STATE.
    (No. 9146.)
    (Court of Criminal Appeals of Texas.
    June 26, 1925.
    Rehearing Denied Oct. 14, 1925.)
    1. Criminal law <&wkey;686(l) — Confining state to rebuttal testimony after’close of defendant’s case within discretion of court not reversed' where no abuse.
    Matter of confining state to rebuttal,testimony after defendant’s case is closed is within discretion of trial court, and, where court permitted defendant to offer any other evidence he desired, and there was nothing in the record to show that discretion was abused, there was no error.
    2. Criminal law <&wkey;>! 124(4) — Where record fails to show that evidence taken on motion for new trial was preserved, nothing is presented for review.
    Record failing to show that evidence taken at motion for new trial was preserved by proper bill of exceptions or in any other manner, nothing was presented for review.
    3. Criminal law <&wkey;>l 144(18) — Presumption that court’s ruling on motion for new trial was correct, where record fails to show testimony, and court heard same.
    Where record fails to show testimony heard on motion for new trial, and order overruling same shows evidence was heard by court, it is conclusively presumed that trial court acted correctly in overruling same.
    On Motion for Rehearing.
    4. Intoxicating liquors ¡&wkey;>236(19) — Evidence held sufficient to support conviction of manufacturing liquor.
    Evidence of defendant’s conduct about the raided still held sufficient to support conviction for manufacturing liquor.
    <£=s>For other cases se© same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appe’al from District Court, Eranklin County; R T. Wilkinson, Judge.
    Oscar Volantino was convicted of unlawfully manufacturing liquor, and he appeals.
    Affirmed.
    
      Wilkinson. & Wilkinson, of Mt. Vernon, and J. A. Ward, of Mt. Pleasant, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

The appellant was convicted in the district court of Franklin county for unlawfully manufacturing liquor, and his punishment assessed at confinement in the penitentiary for a term of two years. The evidence is amply sufficient to support the verdict.

There are but three bills of exception contained in this record, and each of them complains at the court’s action in permitting the state to reopen the case, after the defendant’s testimony had closed, and offer testimony which the defendant claimed was not in rebuttal of any testimony offered by him. The first of these bills of exceptions shows that the court offered to permit the defendant to offer any other evidence he desired, and the defendant stated that he had none. The matter of confining the state strictly to rebuttal testimony is a question largely confided to the sound discretion of the trial court, and, in the absence of a showing that this discretion has been abused, this court will not reverse on account thereof. In this case there is no suggestion in this record that the trial court’s discretion was abused in the particulars complained of, and appellant’s complaints with reference thereto are without merit and are overruled.

In his brief appellant complains at the court’s action in refusing to grant him a new trial on account of newly discovered evidence. The order of the court overruling the motion for a new trial states that the court overruled the same after he had heard the motion and the evidence submitted thereon, and the record fails to disclose that the evidence taken on said motion for a new trial was preserved by proper bill of exception or in any other manner, and in this state of the record there is nothing before this court for review. In the absence' of the testimony heard on the motion for new trial, and where the order overruling same shows that evidence was heard, it will be conclusively presumed that the trial court acted correctly in overruling the same.

There being no errors in this record, it is our opinion that the judgment should be in all things affirmed.

PER CURIAM.

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.

On Motion for Rehearing.

LATTIMORE, J.

It is settled by the decisions of this court that, when the order of the trial court recites that evidence was heard by him in passing on. the motion for new trial, and there is no evidence preserved and here presented by proper bill of exceptions, we will assume that the judgment of the lower court in overruling the motion is correct, and that it was supported by the evidence so heard. Harcrow v. State, 97 Tex. Cr. R. 275, 261 S. W. 1046. The affidavits attached to appellant’s motion but reflect evidence of an alibi for appellant at some time before midnight on the occasion of the raid which formed the basis for the prosecution. The officers testified that, while they were watching the still before midnight, some one came to it; but none of them identified by name or description appellant or his companion as such visitor. The officers did testify that appellant and his companion, Tittle, came to the still about daylight and began to pour up the liquid and move the parts about, and otherwise show their interest in the operation of the still. Their actions,- coupled with statements then made by them, are sufficient to support the conviction. The newly discovered evidence would in no likelihood have affected the result of the trial.

The motion for rehearing is overruled.  