
    Zack KENNEY v. STATE.
    (No. 11887.)
    Court of Criminal Appeals of Texas.
    June 13, 1928.
    Rehearing Denied Oct. 17, 1928.
    ' Futch & Cooper, of Henderson, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for murder, punishment being three years in the penitentiary. Neither statement of facts nor bills of exception are found in the record. In such condition nothing is presented for review. The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

When no statement of facts is in the record, we are wholly unable to appraise the value of testimony set up in a motion for new trial as newly discovered. The relevance and materiality of such testimony was for the trial court, who had before him the original facts given in testimony, as well as those alleged to be newly discovered. He refused the new trial. We have no reason to believe that his discretion was abused. The motion for rehearing is overruled.  