Burnham and Brown v. State

28 S.W.2d 549, 115 Tex. Crim. 350, 1930 Tex. Crim. App. LEXIS 473

• Court: Court of Criminal Appeals of Texas
• Decided: May 21, 1930
• Docket: No. 13376.
• Status: Published

Opinion

LATTIMORE, Judge.

Conviction for robbery by assault; punishment, five years in the penitentiary.

A negro man claimed to have been held up by appellants and robbed of sixteen dollars. This man was practically uncorroborated. The defendants claimed that the three of them engaged in a game of dice in which the prosecuting witness lost his said money. The case on its facts seems to rest upon close lines.

We are of opinion that a new trial should have been granted upon the ground of newly discovered evidence. The showing made by appellants was sufficient. The newly discovered evidence was unquestionably material, and if true would likely produce a different result. Same was not known to appellants or their attorneys, and apparently could not have been ascertained by them by the exercise of reasonable diligence. The State introduced nothing of a controverting nature upon the hearing of the motion. We think same should have been granted.

The State should not have been permitted to introduce hearsay testimony to the effect that the prosecuting witness identified one of the appellants in the presence of the officers, after their arrest.

For the errors mentioned the judgment will be reversed and the cause remanded.

Reversed and remanded.