Waters v. State , 81 Tex. Crim. 491 ( 1917 )

Appellant was convicted of theft from the person and her punishment assessed at the lowest prescribed by law.

The evidence was conflicting. That by the State was amply sufficient, and it evidently was believed by the jury, to show her guilt.

She herself testified and denied the whole transaction. The jury evidently did not believe her testimony.

She has several bills of exception. The court refused most of them outright and explained and qualified all the others. Appellant accepted them as thus qualified and is bound thereby. The court in some of his explanations shows that the attorneys who prepared the bills did not try the case; that no stenographic report of the testimony was written out and that this accounts for the bills as prepared being incorrect and some of them refused.

Appellant properly pleaded for a suspended sentence. She testified in her own behalf, and in cross-examination of her the State was permitted to prove her character and the number of times that she had been arrested for different offenses and such like matter, all of which was admissible because of her said plea, the court stating at the time that the testimony was admissible and he admitted it because of her said plea, which was insisted upon all the time. She introduced no witness and offered no testimony other than her own, and then closed. She offered no testimony at all to show that she had never been convicted of a felony in this State or elsewhere. Thereupon the court, in the absence of the jury, suggested to her attorney that if he was not going to make such proof it would be better if he would abandon or withdraw his application for a suspended sentence, which would make the rules of evidence much more clear in the case. He refused to do this. Thereupon the court, at his own instance, withdrew from the jury all of the testimony of her character and of the different arrests which had been made of her and instructed the jury not to consider any of that evidence for any purpose whatever; and as she offered no testimony to show that she had never been convicted of a felony, as stated, the court declined to submit to the jury any charge on a suspended sentence.

The action of the court in all these respects was strictly in accordance with the statute and the many decisions of this court thereunder. (2 Vernon's Ann. Crim. Stats., arts, 865b and 865c, and the decisions collated thereunder.)

The only other bill complains of the action of the court in overruling her motion for a new trial on the ground of claimed newly discovered testimony of Lottie Harris. The court calls attention to the fact in approving this bill that no diligence was shown, no fact newly discovered and no oath by anyone to the truth of the same. The bill does not intimate that appellant introduced or offered any testimony whatever to support his motion. His motion on that ground is not sworn to by any person. The affidavit of the claimed witness and what she would testify is not attached, and no reason at all was even alleged why this was not done. Clearly the action of the court on this point was correct. (Art. 837, C.C.P., sub. 6; Gray v. State, 65 Tex. Crim. 204, and authorities there cited. It is useless to cite others.)

The judgment is affirmed.

Affirmed.