Melton v. State

281 S.W. 560, 103 Tex. Crim. 590, 1926 Tex. Crim. App. LEXIS 328

Opinion

MORROW, Presiding Judge.

The offense is misdemeanor theft, punishment fixed at a fine of twenty-five dollars and confinement in the county jail for a period of thirty days.

We are unable to consider the statement of facts for the reason that it was filed several weeks after the time allowed by law and by order of the trial court.

There is an application for a continuance on account of the absence of two witnesses. One of them, according to the qualification, was not a resident of the state; for the other there was not sufficient diligence. Moreover, the relevancy or materiality of their testimony cannot be determined in the absence of a statement of facts.

There is a complaint of an indirect reference of the appellant’s failure to testify. The argument was to the effect that certain witness testified that they had seen the appellant take a blanket out of the car and that no one had denied it. The bill fails to show, and we are unable to determine, in the absence of a statement of facts, that no one other than the appellant was in a position to contradict the witnesses mentioned. Pickerell v. State, 82 Texas Crim. Rep. 68; Boone v. State, 90 Texas Crim. Rep. 374.

Another bill complains of the sufficiency of the evidence. The trial court, after hearing the evidence, having approved the judgment, this court without knowledge of the proof made must assume it to have been sufficient.

Affirmed.