
    ROBERTS v. STATE.
    (No. 3811.)
    (Court of Criminal Appeals of Texas.
    Dec. 15, 1915.)
    1. Criminal Law <&wkey;598 — Continuance— Diligence.
    A motion filed by accused for a continuance was properly denied where it clearly showed a lack of diligence.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent.' Dig. §§ 1335-1341; Dec. Dig. 598.]
    2. Criminal Law <&wkey;1144 — Appeal—Denial oe New Trial — Presentation eor Review.
    The denial of a new trial sought for newly discovered evidence, in a criminal case, will be presumed on appeal to have been correct, where such evidence is not shown in the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. &wkey;1144.]
    3. Cbiminal Law <&wkey;939 — New Trial — Newly Discovered Evidence — Diligence.
    A new trial sought for newly discovered evidence was properly denied where it appeared that accused used no diligence to discover such evidence before the trial, and that with any reasonable diligence he would have discovered it.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2318-2323; Dec. Dig. <S&wkey; 939.]
    Appeal from District Court, San Augustine County; A. E. Davis, Judge.
    Clyde Roberts was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    Foster & Davis, of San Augustine, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of an assault with intent to murder, and his punishment assessed at seven years in the penitentiary.

The evidence, while contradictory, is clearly sufficient to sustain the verdict.

Appellant made a motion for a continuance, which the court overruled. It so clearly shows a total lack of diligence that it is unnecessary to state or discuss it. Stacy v. State, 177 S. W. 115.

Appellant has three bills of exception, complaining of the argument of the district attorney. The hills are very meager, and merely complain of a short sentence of the district attorney’s argument in each instance, and in no way give any statement of the case so as to show under what circumstances they were made, nor do they show any such state of facts as to show the remarks were improper. We have considered each of the bills on the subject, and, in our opinion, the district attorney from the record was clearly authorized to make the arguments complained of, and that neither of his hills shows any error. Pierson v. State, 18 Tex. App. 524; Bass v. State, 16 Tex. App. 69; House v. State, 19 Tex. App. 227; Mooney v. State, 176 S. W. 52.

The only other complaint is that the court should have granted, a new trial because of claimed newly discovered evidence. The judgment of the court shows that, when he heard appellant’s motion for a new trial, he heard the evidence thereon submitted, and then overruled his motion. What that evidence was is in no way shown in this record by bill of exceptions, statement of facts, or otherwise. It is the well-settled law of this state that, under such circumstances, we must, and do, presume the action of the court was correct, and that the evidence justified his action. Knight v. State, 64 Tex. Cr. R. 564, 144 S. W. 967; Graham v. State, 73 Tex. Cr. R. 34, 163 S. W. 726; Morris v. State, 73 Tex. Cr. R. 67, 163 S. W. 709; Hoskins v. State, 73 Tex. Cr. R. 109, 163 S. W. 426, and authorities cited in the opinions in these cases. Besides this, the record as it is amply shows that appellant used no diligence to discover this claimed newly discovered evidence before the trial, and that any reasonable diligence on his part would have discovered this evidence. Section 1149, White’s Ann. C. C. P.

The judgment is affirmed. 
      <i&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     