Boyce v. State , 43 Tex. Crim. 459 ( 1902 )

DAVIDSOFT, Presiding Judge.

Appellant was convicted of an aggravated assault, and fined $25. When the case was called for trial, he entered a plea of not guilty. Evidence was introduced in behalf of the State, followed by witnesses for defendant, including himself. After defendant was excused from the witness stand and consulted with his attorneys, he was recalled as a witness, and further testified that certain portions of his prior statements were false; that he was in South Green-ville directly after the assault was committed upon Flanders, whereas in his prior statement he stated he was not at that point. He was again excused as a witness, and had further consultation with has attorneys. At the conclusion of the second consultation, he withdrew the plea of not guilty, and entered a plea of guilty. The judgment recites that defendant pleaded guilty. The court verbally instructed the jury to find defendant guilty, which they did, assessing his fine at $25. Appellant filed a motion for new trial, setting up newly discovered testimony of two witnesses who stated they were cognizant of the fact that appellant was not the party who made the assault upon Flanders, but that it was made by one Dan Wright. The court refused to grant a new trial, and appeal was prosecuted. This action of the court is assigned as error. The State fully sustained the allegations of the indictment that defendant was the party who committed the assault. The assaulted party, Flanders, identified defendant as the man who struck him, and gave the facts connected with his knowledge and acquaintanceship with appellant. In addition to this, appellant pleaded guilty. Under this character of case, we do not believe the motion for new trial should have been granted. The judgment is affirmed.

Affirmed.