Appellant and John Lee were jointly indicted for selling intoxicating liquor. Appellant was alone upon trial which resulted in conviction with the punishment assessed at one year in the penitentiary.

No bills of exception are brought forward. In an amended motion for new trial it is alleged that the jury in their retirement discussed the failure of appellant to testify. This motion was not verified. In the order overruling the motion, it is recited that evidence was heard. No testimony regarding the averment of the jury’s misconduct is brought forward. Presumptively the order of the court was correct. Nothing in the record indicates.to the contrary.

The alleged purchaser testified positively that he bought a pint of whisky from appellant and paid him for it. Appellant did not testify. The witnesses tendered by him gave evidence which, if believed, would have established an alibi. This issue was submitted, and on conflicting testimony was settled by the jury in favor of the state. No errors appear from the record.

The judgment is affirmed.