The offense, theft of cattle; the punishment, two years in the penitentiary.
The statement of facts is in question and answer form. It has long been the settled rule of this court under the statute and decisions, not to consider a statement of facts filed in this court which is in question and answer form, but such statement of facts when filed here must be in narrative form in order to be considered. Knox v. State, 113 Texas Crim. Rep., 373, 22 S. W. (2d) 932; Hines v. State, 50 S. W. (2d) 823.
The appellant complains of the trial court’s refusal to instruct a verdict of not guilty because of the insufficiency of the evidence. In the absence of a statement of facts which we are authorized to consider, the sufficiency of the evidence must be presumed. Nothing appears in the bills of exception complaining of said action which enables us to determine in the absence *198of a statement of facts that error was committed. The trial court having heard the evidence and having approved the judgment, this court without knowledge of proof made must presume its having been sufficient. See Tex. Juris., vol. 4, sec. 169; Melton v. State, 103 Texas Crim. Rep., 590; Steed v. State, 104 Texas Crim. Rep., 579.
Appellant also excepted to the main charge of the court for its failure to give a charge on circumstantial evidence. The propriety of the court’s action in refusing to give a charge on circumstantial evidence depends upon or requires a consideration of the evidence, and, in the absence of a statement of facts which we are authorized to consider, we cannot determine whether or not error was committed in refusing to charge on circumstantial evidence. See Tex. Juris., vol. 4, sec. 171; Bolten v. State, 88 Texas Crim. Rep., 432, 227 S. W., 326.
There are other bills of exception to the courts charge, none of which can be appraised in the absence of a statement of facts. See Tex. Juris., vol. 4, p. 239; Mayo v. State, 27 S. W. (2d) 811; Webb v. State, 37 S. W. (2d) 753.
There are several bills of exception as to the admission and exclusion of certain testimony. None of said bills have been so drawn as to demonstrate that the ruling was erroneous and was calculated to injure the accused, and therefore, in the absence of a statement of facts, we are unable to say that error has been committed. Tex. Juris., vol. 4, sec. 168.
Among the grounds set up in appellant’s motion for new trial was that of newly discovered evidence. Attached to said motion for new trial were the affidavits of several witnesses. Said motion was contested by the state. It is recited in the order overruling the motion for new trial that evidence was heard thereon by the trial court. Even if the averments of said motion were of that convincing character necessary in order to make same newly discovered, we would have to hold against the appellant’s contention because neither by bill of exception nor by statement of facts duly approved and brought forward in the record is the testimony heard by the court when the motion for new trial was presented, preserved or brought here. We must therefore indulge the presumption that the court’s action in overruling the motion in so far as it was based on newly discovered evidence was correct, and that the trial court acted upon evidence which was sufficient to justify his action. See Scroggins v. State, 112 Texas Crim. Rep., 543, 17 S. W. (2d) 829; Sykes v. State, 109 Texas Crim. Rep., 39, 2 S. W. (2d) 863; Crouchette v. State, 99 Texas Crim. Rep., 572, 271 S. W., 99; Hughey v. State, 98 Texas Crim. Rep., 413, 265 *199S. W., 1047.
Finding no reversible error as presented by the record, 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.