The bills of exception show that the result of the search of the automobile was revealed by the testimony of the officers. In expressing the contrary view in the original opinion we were mistaken. In reading the record, however, we are confirmed in the view that in admitting the testimony mentioned the trial court was not in error. In our opinion, the bills show that in making the search the officers acted upon probable cause. *Page 24
The alleged fault in the indictment is deemed within the purview of Art. 21, P. C., 1925, which reads as follows:
"The use of the singular number includes the plural and the plural the singular."
If we comprehend the interpretation of the statute in the case of Utsler v. State, 195 S.W. 855, to which we have been referred, it is against the appellant's contention. There the "injured party" was held to include four children whom it was charged the accused had abandoned.
The statute with reference to evidence heard upon the motion for new trial was considered in the case of Doughtery v. State, 59 Tex.Crim. R., in which it was said in substance that where there was no showing that oral testimony was heard upon the motion for new trial and there was no certificate of the trial judge and that the affidavits attached to the motion were the only evidence in the matter, the judgment of the court overruling the motion would not be disturbed. In the revision of the statute there has been no substantial change in the verbiage, and in numerous instances this court has followed that case holding that where, as in the present instance, there were affidavits attached to the motion for new trial and the judgment overruling the motion for new trial recites that evidence was heard, in the absence of the facts before the court, the presumption in favor of the court's ruling in overruling the motion for new trial is conclusive on appeal. Among the recent cases upon the subject is Crouchett v. State,271 S.W. 99. Numerous later cases reaffirming the doctrine are collated in Shepard's Southwestern Citations, November, 1928, *page 483.
The correct disposition of the appeal having been made in the original opinion, the motion for rehearing is overruled.
Overruled. *Page 25