McFadden v. State , 44 Tex. Crim. 420 ( 1903 )

HENDEBSON, Judge.

Appellant was convicted of burglary, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

In the motion for new trial appellant asks that the same be granted to procure the testimony of one Willard. No motion for continuance was made on account of the absence of this witness. It appears that said witness was not subpoenaed. Appellant says that said witness was absent at the time, and he believed then that he had moved to the In- ' dian Territory, and he declined to delay the case for his testimony; but he has since learned that this witness is in Arkansas, and will attend if a new trial is granted. This does not present a ground for the granting- a new trial. Nor does it appear to us from the affidavit of this witness that his testimony would be material. What he states may be true, and still it would not show that appellant did not commit the burglary. The fact that this witness may have testified that he saw Charlie McEadden, appellant, and A1 Glen that night between 11 and 12 o’clock in the vicinity of the burglarized house, in a buggy, and that he saw appellant get out of the buggy, and start back north in the direction of where he lived, and saw A1 Glen start south in the direction of where he lived, would not prove that they went to their respective homes at that time, or that they did not return afterwards and commit the burglary.

Appellant also craved a new trial on account of newly discovered evidence. If we concede that diligence was used to discover this testimony,—which is doubtful,—still it does not occur to us that the testimony of the newly discovered witness was material. The fact that said newly discovered witnesses would testify that they were present when the negro Henry Boone, a witness for the State, testified that A1 Glen and Charlie McEadden came to where he was when he cut down a tree where a coon had been treed, and the dogs caught it, and that this happened at 9 o’clock, instead of about 12 o’clock, as the negro testified, would be hardly sufficient to authorize a new trial. We do not understand either of these witnesses to testify that they were present when this occurred. They claimed that they were 200 or 300 yards away from where they heard a tree cut down, and heard the tree fall, and heard the parties after the coon. They did not testify who these parties were; much less that it was the negro Boone. It may be that Boone cut a tree as early as 9 o’clock, but this would not prove that he did not cut another tree, where a coon had been treed, at 12 o’clock, and that appellant and A1 Glen came up to where they were in a buggy at the time. The affidavits fail to show the materiality of the testimony.

Appellant insists that the testimony, as developed by the record, fails to establish the guilt of appellant, under the rules prescribed for cir cumstantial evidence. We have carefully examined the evidence, and, in our opinion, it is ample to have authorized the jury to convict appellant as'they did in this case.

[Appellant’s motion for rehearing was overruled without a written opinion.—Reporter.]

There being no error in the record, the judgment is affirmed.

Affirmed.