Wyatt v. State

94 S.W. 219, 49 Tex. Crim. 193, 1906 Tex. Crim. App. LEXIS 4

• Court: Court of Criminal Appeals of Texas
• Decided: January 31, 1906
• Docket: No. 3462.
• Status: Published

Opinions

DAVIDSON, -Presiding Judge.

Conviction for violating the local option law. The indictment was attacked. It follows the approved forms, and is sufficient.

Newly discovered evidence is alleged. An examination of it, however, shows that if the facts stated are true, they were well known to defendant before the trial, and no effort was made to secure the presence of the witness. It went to prove an alibi. If the testimony of the witness whom it is alleged would testify to the facts is true, then appellant was with him and knew of the facts at the time of the trial and no effort was made to secure his presence.

It is also urged as a ground for reversal that defendant was not present at the time the verdict was returned into court. This is shown to be a true statement of the fact. This constitutes no ground for reversal. Article 749, Code Criminal Procedure, provides that in all felony cases the accused must be present when the verdict is returned into court, but in misdemeanor cases the verdict may be received in the absence of the defendant. There is a conflict in the facts. The evidence for the State supports the conviction. The jury saw proper to believe the State’s version, and we have no authority to set aside the judgment where the evidence is in conflict. The judgment is affirmed.

Affirmed.