Ex Parte Maple

Touching the above matter, after the writs described in the application were denied in a written memorandum delivered in chambers, counsel presented an additional application, copy of which was attached to the original application. In the additional paper it is stated in substance that the judges were mistaken in that part of the order refusing to issue the writs, wherein it is stated that the affidavit of F. O. Fuller attached to the application did not appear to have been presented to the trial court. The affidavit mentioned is dated the 26th of November. The district court's order refusing an insanity trial was dated the 24th day of November. In the original application presented here counsel stated that Mr. Fuller's affidavit had been presented to the trial court. What purports to be the original affidavit made by Mr. Fuller is attached to the application which was refused. It bears, however, no file mark or certificate of the clerk showing its presentation to the trial court. The mere statement in the application that it had been presented did not impress this court as justifying any action upon it. The application for writ of habeas corpus and the averments therein are mere pleadings and not proof of the facts therein set forth. This is the holding of this court in many cases. See Barginer v. State,23 S.W.2d 365 and authorities cited therein. It may be added, however, that as to the above statement and others a further discussion of the Fuller affidavit was pretermitted for the reason it was noticed that it was made by the attorney who represented appellant on the trial of the case and who appeared for him in the presentation of the request for writ of habeas corpus and mandamus. The Statute, Art. 922, sets forth the character of an affidavit; namely: "one by a respectable person." The term "respectable" as set forth in such a statute has been judicially construed as meaning a competent, credible and disinterested witness. We know nothing that would make Mr. Fuller other than competent and credible. But that he is not disinterested is manifest by the statements above showing his interest in the litigation.

The court in many cases, both old and new, has expressed itself as unwilling and unauthorized to base affirmative action upon motions setting up newly discovered evidence where the affidavit is taken before the attorney representing the accused in the trial, it being the position of the court that his interest in the matter disqualifies him from performing the function of a notary public in such cases. Maples v. State,131 S.W. 567; Scott v. State, 65 Tex.Crim. R.; Melton v. State,182 S.W. 289; Hall v. State, 185 S.W. 574; Gibbs v. State,268 S.W. 736; Kellum v. State, 240 S.W. 1109.

Mr. Fuller apparently has been very diligent in performing the difficult and unpleasant duty of defending a man who insisted upon entering a plea of guilty of murder which plea was fully supported by the evidence upon the trial in which there were no facts developed requiring the presentation of the issue of insanity, and the conduct of Mr. Fuller in the matter has been commendable. This court, however, even if it appeared that his affidavit had been presented to the trial court, would not be justified in overturning the action of the trial court in refusing to order an insanity hearing upon the strength of the affidavit mentioned.

Denied.