Gable v. State

Full title: JOHN GABLE v. THE STATE

Court: Court of Criminal Appeals of Texas

Date published: Apr 22, 1931

38 S.W.2d 96 (Tex. Crim. App. 1931)

38 S.W.2d 96

Opinion

No. 14314.

Delivered April 22, 1931. Reported in 38 S.W.2d 96.

1. — Intoxicating Liquor — New Trial.

Where the order overruling the motion for new trial recites that evidence was heard, the presumption follows that the court acted within its discretion upon proper evidence.

2. — New Trial — Newly Discovered Evidence — Statement of Facts.

In the absence of a statement of facts, the appellate court is not able to determine the cogency or sufficiency of the newly discovered evidence and must indulge the presumption that the newly discovered evidence was not regarded by the court such as likely to bring about a different result.

Appeal from the District Court of Gregg County. Tried below before the Hon. Reuben A. Hall, Judge.

Appeal from a conviction for selling intoxicating liquor; penalty, confinement in the penitentiary for one year.

Affirmed.

The opinion states the case.

C. E. Florence, of Gilmer, for appellant.

Lloyd W. Davidson, State's Attorney, of Austin, for the State.

MORROW, PRESIDING JUDGE. —

Unlawfully selling intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for one year.

The indictment is regular and regularly presented. The record is before us without statement of facts and bills of exception.

A new trial was sought upon the ground of newly discovered evidence. Affidavits were attached to the motion in which the purported new evidence was revealed. In the judgment of the court overruling the motion for new trial it is recited that the court heard the motion and the evidence thereon. From this recital the presumption follows that in overruling the motion the court acted within its discretion upon sufficient evidence. See Crouchette v. State, 99 Tex.Crim. Rep.; Harris v. State, 35 S.W.2d 1046, and authorities cited. We will add, however, that in the absence of a statement of what evidence was before the court on the trial of the case, this court is not able to determine the cogency or sufficiency of the alleged newly discovered evidence and must indulge the presumption that in overruling the motion for new trial the alleged newly discovered evidence was not regarded by the court such as likely to bring about a different result.

No fundamental error having been perceived or pointed out, the judgment is affirmed.

Affirmed.