The offense is unlawfully carrying a pistol; the punishment a fine of one hundred dollars.
Appellant based his motion for a new trial on newly discovered evidence, and attached thereto the affidavits of parties whom he claimed would testify to the statements contained in said affidavits. The motion for a new trial was sworn to before appellant's attorney. It is further noted that the affidavits attached to the motion were sworn to before appellant's attorney. An attorney for the defendant is not authorized to take affidavits of the character shown herein. Garner v. State, 272 S.W. 167. It is recited in the order overruling the motion for a new trial that evidence was heard. Such evidence is not brought forward. We must therefore indulge the presumption that the court's action in overruling the motion was correct, and that the trial court acted upon evidence which was sufficient to justify his action. Sykes v. State, 2 S.W.2d 863.
The judgment is 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.