The offense is theft of cattle; the punishment, confinement in the penitentiary for two years.

Appellant pleaded guilty. On the trial he testified that he stole two head of cattle from Frank Corn. Mr. Corn testified that the animals in question were taken from his possession August 30, 1935.

In his motion for new trial, appellant set up newly discovered evidence. The evidence adduced on the motion warranted the conclusion of the trial judge that it was owing to a want of due diligence on the part of appellant that the evidence was not discovered sooner. See Branch's Ann.P.C. § 198. In any event, it appears that the alleged new testimony would be inadmissible. Branch’s Ann.P.C. § 199.

The judgment is affirmed.

PER CURIAM.

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.