Gordon v. State

162 S.W. 522, 72 Tex. Crim. 285, 1913 Tex. Crim. App. LEXIS 645

• Court: Court of Criminal Appeals of Texas
• Decided: December 23, 1913
• Docket: No. 2919.
• Status: Published

Opinion

PRENDERGAST, Presiding Judge.

Appellant was convicted of an assault with intent to kill and murder, and her penalty fixed at the lowest prescribed by law.

There are but two questions raised, and they were raised by.appellant’s motion for a new trial. The first is, she complains that "the evidence is wholly insufficient to support the verdict of the jury and judgment herein.” This is in no way pressed by the motion for new trial or otherwise. We have carefully read the evidence. It is unnecessary to state it. It clearly and amply sustains the verdict and judgment.

The second ground is claimed newly discovered evidence. This is attempted to be supported by the pretended affidavits of three persons. The State, on the hearing of the motion, proved that each of these affidavits were sworn to before appellant’s attorney. This would make the affidavits illegal, or rather, because thereof they can not be considered as affidavits at all. This has repeatedly been decided by this court. Maples v. State, 60 Texas Crim. Rep., 169; Patterson v. State, 63 Texas Crim. Rep., 397, and many other cases unnecessary to cite. Besides this, if the affidavits could he considered, they are wholly lack ing in every particular under the statute, article 837, subdivision 6, Code Criminal Procedure and the requisites thereof, shown by Judge White and his citation of authorities under said article in section 1149 of his Ann. Code Criminal Procedure.

The judgment is affirmed.

Affirmed.

DAVIDSOH", Judge, absent.