Appellant insists that we should consider his motion for new trial and the affidavits attached thereto as showing newly discovered evidence of a material character, and that he did not have a fair jury. We have examined the authorities cited by appellant and others.
It is admitted that unless we can consider the affidavits attached to the motion for new trial as substantiating appellant's contention, his claims are unfounded.
While it is unquestionably true, as appears from many of the early opinions, that this court declined to consider as evidence mere sworn pleadings or affidavits attached to the pleadings, some distinction was recognized in the case of Crouchette v. State, 99 Tex.Crim. Rep., 271 S.W. 99., between affidavits attached to the motion for new trial, and those attached to other pleadings, based on the statutory direction, in effect, that the court in passing upon a motion for new trial might hear evidence by affidavit or otherwise. However, in the case last above cited, after discussing the question, the clear statement is made that even though there be affidavits attached to the motion for new trial, if the order overruling such motion recites that evidence was heard, this court will adhere to the proposition that the trial court thereby intends to announce that other evidence was heard beside the attached affidavits, and the presumption of correctness on the part of the lower court will be indulged. The same proposition is announced in Lopez v. State,84 Tex. Crim. 422, 208 S.W. 167; Jones v. State, 103 Tex. Crim. 282,280 S.W. 588; Purswell v. State, 107 Tex. Crim. 121,294 S.W. 1107; Rios v. State, 110 Tex. Crim. 75,7 S.W.2d 535. These authorities all seem to be against the contention of appellant, and we regard them as announcing the settled law of this State. Following them, we regret that we are unable to agree
with appellant's contention, and the motion for rehearing will be overruled.
Overruled.