Volantino v. State , 101 Tex. Crim. 321 ( 1925 )

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. Crim. 275. 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.

Overruled.