DocketNumber： No. 689.
Citation Numbers： 134 S.W. 348, 61 Tex. Crim. 140
Judges： Ramsey, Harper
Filed Date： 10/12/1910
Status： Precedential
Modified Date： 10/19/2024
ON REHEARING.
February 15, 1911.
a former day of this term of court in this case an opinion was rendered affirming the judgment as to Sam Sellers, and reversing and remanding the judgment as to Champ Mansfield. A motion for rehearing has been submitted on behalf of Sellers, in which appellant seeks to complain of the formation of the jury. Ho complaint was made in the court below at the time of the selection of the jury, nor in the motion for a new trial, and it is too late to raise this question on appeal, especially as the matters complained of do not appear in the record filed in this court. This court has always held that it can not consider ex parte affidavits filed with the brief of the appellant, in which new issues are sought to be made in this court not made in the trial court. It is not shown that appellant Sellers suffered any injury by reason of the matter complained of.
Appellant complains that the testimony is insufficient, and we have carefully read the record. It appears there was a “free for all fight” at night in front of Girolomo’s saloon, and a witness swears that while Brown and Prater were fighting, that defendant Sellers cut Brown in the back. Brown and Prater, it appears, were both cut pretty bad. If the jury believed this testimony, it authorized a conviction.
In regard to the newly discovered testimony, it is such testimony as the defendant must of necessity have known before the original trial, and had he desired it, the witness was in the town. In addition, while the witnesses testify on the hearing of a motion for a new *145 trial, that defendant Sellers was in a nearby house at the beginning of the difficulty, he left the house before the row was over, and they did not know where he went, leaving in plenty of time to have engaged in the fight and do the cutting as testified to by the State’s witness.
After carefully reviewing the record, we are of the opinion the motion for a rehearing should be overruled, and it is so ordered.
Overruled.