Appellant was convicted of theft of property over the value of $50 and his penalty fixed at two years imprisonment in the penitentiary.
He assigns but three errors. He presents but two of these by his brief. The first is, he claims he was denied counsel in his trial in the lower court. This is raised by his motion for new trial. There is no bill of exceptions on the subject. It should have been presented by a bill of exceptions. We take it, from his motion for new trial, that he was not denied counsel, but that he was disappointed in not getting a certain attorney whom he claims he thought and understood was going to represent him. The judgment of the court overruling his motion for new trial shows that the court heard the motion and the evidence thereon submitted, and overruled it. From this, we take it, that the court heard testimony and after doing so, concluded there was no merit in appellant's contention. The evidence not being shown to us by bill of exceptions or otherwise, on this point, we must necessarily sustain the action of the lower court and as the matter is presented to us, no reversible error is shown.
The other assignment of error presented by appellant is that the court refused to grant him a new trial on the grounds that the indictment charges appellant with theft, and the evidence adduced on the trial tends to show that he was guilty of embezzlement or some other crime but wholly fails to establish theft. We have carefully read and gone over the evidence repeatedly and our opinion is that the evidence *Page 572 is sufficient to establish the theft and there was no error in the court refusing to grant a new trial on that ground. The evidence is sufficient when taken all together to show that the amount of money taken by appellant was more than $50 at one time.
The judgment will be affirmed.
Affirmed.
[Rehearing denied June 5, 1912. — Reporter.]