IRA LOYD CARTWRIGHT V. STATE
No. 26,151
Texas Court of Criminal Appeals
January 28, 1953
Rehearing Denied March 11, 1953
In Carter v. State, 121 Tex. Cr. R. 493, 51 S.W. 2d 316, we upheld a conviction for aggravated assаult, though the offense charged and proved was rape.
In Grimes v. State, 71 Tex. Cr. R. 614, 160 S.W. 689, 691, is found the following:
“If the testimony of Bessie Smith should be held to show rape, instead of assault to rape, whiсh is exceedingly doubtful, yet, as the state elected to prosecute him for assault to rape, appellant would not be heard to cоmplain.”
Other cases may be found where we have held that conviction of a lesser grade of offense will be sustained though the evidence shows that a greater offense had been committed. See Gatlin v. State, 86 Tex. Cr. R. 339, 217 S.W. 698; Campbell v. State, 65 Tex. Cr. R. 418, 144 S.W. 966.
We remain convinced that the confession is sufficiently corroborated and that the evidence as a whole is sufficient to sustain the conviction.
Appellant‘s motion for rehearing is overruled.
Bing & Bing, by Kenneth W. Bing, Velasco, for appellant.
Sam Leе, County Attorney, Angleton, and George P. Blackburn, State‘s Attorney, Austin, for the state.
The offense is transportation of whiskey in a dry area; the punishment, six months in jail and a fine of $250.00.
Inspector Russell, of the Texas Liquor Control Board, testified thаt on the night in question he occupied cabin No. 6 at a certain court; that he got someone to call the appellant and order а pint of whiskey; that appellant responded to the call, drove uр to the cabin in an automobile, and delivered a pint of whiskey to him, and was arrested as he left the cabin.
Inspector Griffin testified that he and other agents were in cabin No. 7 at the time the above delivery was effeсted and observed appellant drive into the courts, get out of his automobile, and walk directly to cabin No. 6.
Appellant did not testify in his own behalf, but offered the witness Branch, who testified that he was in possession of cabin No. 8 on the night in question; that he had two pints of whiskey therein; that he left the door unlocked, and when he returned the whiskey was missing. He stated further that he had given aрpellant permission to take the whiskey and that appellant reported to him the following day that he had done so.
Bill of Exception No. 1 recites that on cross-examination of the witness Russell the line of questioning wаs directed at testing the knowledge of the witness; that an objection was made; the court sustained it and excluded the testimony. Nowhere therein are we able to tell what the question was or what testimony was excluded. Such а bill presents nothing for review. Taylor v. State, 116 Tex. Cr. R. 641, 31 S. W. 2d 1072, and King v. State, 151 Tex. Cr. R. 410, 208 S. W. 2d 376.
The county attorney controverted the motion for new trial and allеged lack of diligence. The bill contains a recitation of the contents of affidavits from the newly discovered witnesses which were offered in support of the motion, but there is no statement of facts on the hearing; аnd we have no way of knowing what other testimony may have been before the court when he overruled the motion. We cannot accept the allegations in the motion or in the bill relating to appellant‘s diligenсe as proof of such fact. In the absence of a statement of facts on the hearing on the motion, we have no way of passing on thе question sought to be raised.
Finding no reversible error, the judgment of the trial cоurt is affirmed.
ON APPELLANT‘S MOTION FOR REHEARING.
DAVIDSON, Judge.
Appellant insists that consideration should have been given to the overruling of his motion for new trial based upon newly discovered evidenсe as shown by the affidavits of the alleged absent witness which were attaсhed to the motion.
We note that the motion for new trial was not sworn to by appellant or by his counsel.
A motion for new trial on the ground of newly discovered evidence must be sworn to. Branch‘s P. C., Sec. 193, and authorities there cited. See, also, Warren v. State, 120 Tex. Cr. R. 61, 47 S. W. 2d 289.
The motion for rehearing is overruled.
Opinion approved by the court.