Dillon v. State

DAVIDSON, Judge.

The judgment in this case shows that after the appellant, upon his plea of not guilty, “waived a trial by jury, and submitted the decision of the cause to the Court,” he was convicted of the offense of driving an automobile upon a public highway while intoxicated and assessed a fine of $50 and ten days in jail by the court.

By motion for new trial, appellant claims that he did not waive trial by jury but requested a jury trial.

Evidence was heard by the trial court upon the allegation of the motion, and is brought here in a statement of the facts so introduced.

The state challenges consideration of the question sought to be presented, as well the statement of facts, because the motion for new trial was not sworn to by the appellant and was therefore no proper pleading1 raising the question before the court. The case of Williams v. State, 164 Texas Cr. Rep. 137, 296 S.W. 2d 781, is cited in support of the state’s contention.

That case and the cases cited therein preclude consideration of the question upon the unverified motion, and sustain the state’s contention.

The judgment is affirmed.