Miller v. State

33 S.W. 227, 35 Tex. Crim. 209, 1895 Tex. Crim. App. LEXIS 253

Opinion

HENDERSON, Judge.

This conviction was had for fraudulently receiving and concealing a stolen cow, with knowledge of its theft. Two bills of exception were reserved to the remarks of the State’s counsel, made in his argument to the jury; the objection urged being that said remarks alluded to the failure of the appellant to testify on the trial. Further objections were reserved to the statement of the State’s counsel, “That there are thousands of men in the penitentiary and filling felon’s graves upon testimony not half as strong as this.” we have carefully read these remarks, as ¡presented in the bills of exception, and are of the opinion that they did not allude, directly or indirectly, to the failure of appellant to testify in the case. The .'Statement in regard to convicts in the ¡penitentiary, and executed felons, was but an assertion of the State’s attorney, and, if improper, special instructions should have been requested by appellant, directing the jury to disregard them. This was not done. Willson’s Criminal Procedure, 4 2321. The newly discovered evidence, if it be such, could be used for but one purpose, to-wit: to impeach the witness Cole, and, as a general rule, a new trial will not be granted to obtain such evidence. There is nothing in this case to take it out of the general rule. Willson’s Criminal Procedure, 4 2544. We have examined the statement of facts very carefully, and find a serious conflict between the testimony of the State’s and appellant’s wf nesses. The jury settled this conflict in favor of the State. This being the case, the question for us to determine is, whether the testimony in support of the verdict is suificient. We are of the opinion that it is, and cannot, therefore, disturb the verdict. The judgment is accordingly affirmed.

Affirmed.