On the 1st of May, 1935, we handed down an opinion in this case which we styled "Opinion on Motion for Rehearing," and directed that the motion be overruled. We were in error as to the exact situation, and the opinion above referred to is withdrawn, and the following is substituted:
Appellant presents a certificate of the district clerk of Harris county to the effect that the recognizance of the appellant was entered on March 29, 1935; that the statement in the record to the effect that the recognizance was entered on April 29, 1935, is a mistake. The order of dismissal is set aside, the appeal is reinstated, and the case considered on its merits.
The indictment is for theft and contains several counts. The first count charges the receiving of certain corporeal personal property from some person unknown to the grand jurors. The second count charges theft by appellant of property of the same description mentioned above from E. M. Bailey. The conviction is upon the second count, which alone was submitted to the jury. We have perceived no vice in the indictment.
The evidence heard in the trial court is not brought up for review.
The motion for new trial is based upon the alleged insufficiency of the evidence. The other matters which are presented in the motion, depending upon facts, are merely averments verified by the oath of the appellant. In the absence of the evidence we cannot appraise the contentions set up in the motion for new trial, and must follow the decision of the trial judge who had the evidence before him.
The complaint of the insufficiency of the evidence, in the absence of the testimony, is not available to the appellant on appeal.
Finding no error in the record, the judgment is affirmed.
Affirmed.
MORROW, P. J., absent.