Roberts v. State

180 S.W. 1079, 78 Tex. Crim. 317, 1915 Tex. Crim. App. LEXIS 267

• Court: Court of Criminal Appeals of Texas
• Decided: December 15, 1915
• Docket: No. 3811.
• Status: Published

Opinion

PEENDEBGAST, Pees-idiNg Judge.

Appellant was convicted of an assault with intent to murder, and his punishment assessed at seven years in the penitentiary.

The evidence, while contradictory, is clearly sufficient to sustain the verdict.

Appellant made a motion for a continuance, which the court overruled. It so clearly, shows a total lack of diligence that it is unnecessary to state or discuss it. Stacy v. State, 77 Texas Crim. Rep., 52, 177 S. W. Rep., 114.

Appellant has three bills of exception, complaining of the argument of the district attorney. The bills are very meager, and merely complain of a short sentence of the district attorney’s argument in each instance, and in no way give any statement of the case so as to show under what circumstances they were made, nor do they show any such state of fact as to show .the remarks were improper. We have considered each of the bills on the subject, and, in our opinion, the district attorney from the record was clearly authorized to make the arguments complained of, and that neither of his bills shows any error. Pierson v. State, 18 Texas Crim. App., 524; Bass v. State, 16 Texas Crim. App., 62; House v. State, 19 Texas Crim. App., 227; Mooney v. State, 76 Texas Crim. Rep., 539, 176 S. W. Rep., 52.

The only other complaint is that the court should hare granted a new trial because of claimed newly discovered evidence. The judgment of the court shows that, when he heard appellant’s motion for a new trial he heard the evidence thereon submitted, and then overruled his motion. What that evidence was is in no way shown in this record, by bill of exceptions, statement of facts or otherwise. It is the well settled law of this State that, under such circumstances, we must, and do, presume the action of the court was correct, and that the evidence justified his action. Knight v. State, 64 Texas Crim. Rep., 541; Graham v. State, 73 Texas Crim. Rep., 28; Morris v. State, 73 Texas Crim. Rep., 67; Hoskins v. State, 73 Texas Crim. Rep., 107, and authorities cited in the opinions in these cases. ' Besides this, the record as it is a'mply shows that appellant used no diligence to discover this claimed newly discovered evidence before the trial, and that any reasonable diligence on his part would have discovered this evidence. See. 1149, White’s Ann. C. C. P.

The judgment is affirmed.

Affirmed.