Holloway v. State

224 S.W. 1102, 88 Tex. Crim. 126, 1920 Tex. Crim. App. LEXIS 368

• Court: Court of Criminal Appeals of Texas
• Decided: November 10, 1920
• Docket: No. 5862.
• Status: Published

Opinions

MORROW, Judge.

The indictment and. conviction were for assault with intent to murder, and punishment fixed at confinement in the penitentiary for two years.

According to the State’s testimony, the appellant walked into the field where the injured party McCoy was at work. McCoy, as soon as he saw the appellant with a pistol, ran for his home, and was shot twice in the leg as he fled. His wounds were described by a physician. The appellant’s theory and testimony was to the effect that in approaching his home in an automobile, McCoy motioned to appellant to come to him, and on his doing so attempted to attack him with a pitchfork in his hands, and, failing to get over the fence, made a demonstration indicating an effort to draw a pistol.

The issues of fact were submitted to the jury in a charge of which we find in the record no complaint. A new trial was sought upon the grounds that improper evidence was received. In the absence of bill of exceptions reserved to the action of the court, his rulings upon the admission of evidence cannot be reviewed. Vernon’s Texas Crim. Statutes, vol. 2, p. 535, note 15; C. C. P., Art. 744.

Alleged newly discovered evidence is relied on as one of the grounds for a new trial. The failure to support the averments in motion for a new trial on this ground by the affidavits or testimony of the witnesses who know the newly discovered facts, or to account for the absence of such proof, renders it insufficient to overcome the presumption that in refusing to grant the new trial the judge did not abuse the discretion vested in him by the law. Vernon’s Texas Crim. Statutes, p. 806, not 13 and 14, and cases listed; Branch’s Annotated Texas Penal Code, sec. 197. Accompanying the statement of facts we find some evidence, apparently introduced in support of the motion. The statement of facts, however, was not filed until after the adjournment of the court for the term at which the ease was tried, and for that reason cannot be considered in support of the motion, as the law .requires that facts adduced upon issues raised on the hearing of a motion for a new trial shall be filed during the term. Black v. State, 41 Texas Crim. Rep., 185; Probest v. State, 60 Texas Crim. Rep., 609. If considered, however, we think the evidence would not authorize a reversal of the judgment.