The appellant was convicted in the district court of Franklin county for unlawfully manufacturing liquor and his punishment assessed at confinement in the penitentiary for a term of two years.
The evidence is amply sufficient to support the verdict.
There are but three bills of exception contained in this record and each of them complains at the court's action in permitting the State to reopen the case after the defendant's testimony had closed and offer testimony which the defendant claimed was not in rebuttal of any testimony offered by him. The first of these bills of exceptions shows that the court offered to permit the defendant to offer any other evidence he desired and the defendant stated that he had none. The matter of confining the State strictly to rebuttal testimony is a question largely confided to the sound discretion of the trial court and in the absence of a showing that this discretion has been abused, this court will not reverse on account thereof. In this case, there is no suggestion in this record that the trial court's discretion was abused in the particulars complained of and appellant's complaints with reference thereto are without merit and are overruled. *Page 323
In his brief appellant complains at the court's action in refusing to grant him a new trial on account of newly discovered evidence. The order of the court overruling the motion for a new trial states that the court overruled the same after he had heard the motion and the evidence submitted thereon, and the record fails to disclose that the evidence taken on said motion for a new trial was preserved by proper bill of exception or in any other manner, and in this state of the record there is nothing before this court for review. In the absence of the testimony heard on the motion for new trial and where the order overruling same shows that evidence was heard, it will be conclusively presumed that the trial court acted correctly in overruling the same.
There being no errors in this record it is our opinion that the judgment should be in all things affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING