Moore v. State , 121 Tex. Crim. 199 ( 1932 )

The record having been perfected, the appeal is reinstated and the case considered on its merits.

Witnesses for the state testified that they went to a whisky still and found appellant and some other parties there. They gave it as their opinion that the still had a capacity of about 150 gallons. They said at the time they appeared on the scene whisky was being manufactured. We quote from the testimony of one of the witnesses as follows: "They were pretty busy around the still, chunking the fire and toting up wood, and drinking some beer. There was eighteen mash barrels there, and sixteen yet to cook off. I didn't have any conversation with the defendant more than he asked me if I wanted a drink of whisky or some beer."

Appellant offered no testimony.

Appellant's motion for a new trial was predicated upon alleged newly discovered evidence. It was averred in the motion, in substance, that Perry Moore had been tried on a charge of manufacturing intoxicating liquor, which grew out of the same transaction upon which the indictment in the present case was predicated; that upon the trial of Moore's case the state's witness in the present case had testified that he had seen Perry Moore and the appellant in the present case at the still at ten o'clock in the morning on the 13th of January, 1931; that on the present trial appellant was not represented by counsel, and, not understanding how to examine witnesses, failed to interrogate the state's witnesses as to the time he visited the still; that appellant did not learn until after his trial that the state's witnesses visited the still at ten o'clock in the morning; that the named witnesses, whose affidavits were attached to the motion for a new trial, would testify that they saw appellant in his automobile leaving for Tyler, Texas, at about ten o'clock in the morning, — January 13, 1931; that appellant did not know that the witnesses would testify to such fact until after he had been convicted. The motion for new trial was signed and sworn to by Tom Stapler. The affidavits of the alleged newly discovered witnesses were attached to the motion for new trial. Several of these affidavits were taken and sworn to before one of appellant's counsel. Appellant's affidavit is not present in the record.

It is recited in the order overruling the motion for new trial that evidence was heard. Such evidence is not brought forward. We must therefore indulge the presumption that the court's action in overruling the motion was correct, and that the trial court acted upon evidence which was sufficient to justify his action. Sanchez v. State, 111 Tex. Crim. 565,15 S.W.2d 632; Sykes v. State, 109 Tex. Crim. 39,2 S.W.2d 863; Crouchette v. State, 99 Tex. Crim. 572,271 S.W. 99; Hughey v. State, 98 Tex.Crim. Rep.,265 S.W. 1047.

It is observed that the motion for new trial was not supported by the affidavit of appellant. It is the general rule that a motion for new trial on the ground that new testimony material to the defendant had been discovered since the trial should be supported by the affidavit of the defendant, as well as that of the proposed witnesses when practicable, and the same should be explicit enough to satisfy the court that the new testimony is in fact newly discovered testimony and that it was not known to the defendant until after the trial, and that it was not owing to a want of diligence that it was not discovered sooner. Section 195, Branch's Annotated Penal Code; Frickie v. State,40 Tex. Crim. 626, 51 S.W. 394; Gotcher v. State, 66 Tex. Crim. 522,148 S.W. 574; Bracher v. State, 72 Tex. Crim. 198,161 S.W. 124.

Again, diligence was not shown. It was incumbent upon appellant to satisfy the trial court that the new testimony came to his knowledge since the trial, and that it was not owing to the want of due diligence that it was not discovered sooner. Branch's Annotated Penal Code, sec. 198; Whitfield v. State, 40 Tex.Crim. Rep., 48 S.W. 173. See, also, Arnold v. State, 115 Tex.Crim. Rep., 29 S.W.2d 762.

Failing to find error, the judgment is affirmed.

Affirmed.

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.

ON MOTION FOR REHEARING.