This appeal is from a judgment assessing defendant's punishment at two years confinement in the penitentiary for theft. A statement of facts is not incorporated in the record.

In his motion for a new trial defendant alleges, that since his conviction he has discovered testimony by which it can be shown the value of the stolen property was less than $20, and in support thereof attaches to the motion an affidavit, signed by three parties, in which the value of the stolen property is placed at 50 cents per yard. The quantity of cloth alleged to have been stolen was thirty yards, and its value averred at $30. The court submitted only the felonious phase of the theft, and we will presume, in the absence of the facts, the testimony did not suggest the minor degree of the offense. By its averments, the indictment put the defendant upon notice that value would be a necessary issue on the trial, and it would be incumbent upon the prosecution to prove it to be $20 or more in order to sustain a conviction for felony. Indicted parties should use the necessary diligence to procure testimony relative to the issues necessarily involved in the case. The motion admits defendant's guilt. The court did not err in refusing the new trial. Haskins v. The State, 20 S.W. Rep, 832.

The judgment is affirmed.

Affirmed.

Simkins, J., absent. *Page 558