King v. State , 99 Tex. Crim. 425 ( 1924 )

Appellant urges that for refusal to submit the case on the theory of circumstantial evidence, it should have been reversed. The officers gave direct testimony as to the fact of transportation of the liquor by appellant, hence there was no call for such charge.

Appellant and one Montgomery were together and apparently acting together in the transportation of the liquor. What Montgomery may have said the night before of his purpose to transport liquor, would be material to the issue of transportation by him and appellant in this case. His impeachment in regard to such statement was, therefore, not open to the objection that it was allowing impeachment on an immaterial matter. So also as to the matter as to who was with Montgomery and appellant in the car out of which the latter two got with the liquor shortly before their arrest. It was material to the issues in this case to show who said party was. Appellant and Montgomery testified on the trial that it was a man named Browning. Montgomery was impeached by showing that he had stated to various parties that the man who drove off in the car just before they were arrested, was a negro.

Complaint is made that the court refused to extend the term at the request of appellant, it being contended that this was to enable him to present some matters material to the proper presentation of his case. It appears that appellant was convicted on July 21st, and thereafter filed a motion for new trial. On the last day of the term, — the 28th of July, — he filed a supplemental motion setting up and relying upon certain facts issues. This supplemental motion was not sworn to. The request for an extension of the term was to enable appellant apparently to procure witnesses to testify relative to the things set up in this supplemental motion. If the matter thus involved was one which was not properly before the court, it would be manifest that the refusal would not be error. Numerous authorities will be found on page 805 of Vernon's Annotated C. C. P. sustaining the proposition that a motion for new trial such as is this supplement, must be sworn to, otherwise it will not be considered.

This disposes of the points made in the motion, and being unable to agree with appellant it will be overruled.

Overruled.