155 S.W. 212 | Tex. Crim. App. | 1913
Appellant was prosecuted and convicted of murder in the first degree and his punishment assessed at imprisonment for life.
The first two grounds in the motion for new trial, complaining of the action of the court in admitting the garments worn by deceased at the time he was killed, in evidence, and rejecting certain testimony about deceased having once been confined in the Arkansas *562 penitentiary, can not be considered, as no bills of exceptions were reserved. If bill had been reserved, the garments worn by deceased at the time of the homicide are always admissible if they serve to illustrate any point in the case, and under the evidence the clothing was properly admitted. And it is not shown in the motion at what time deceased was confined in the penitentiary, if he ever was, as presented, if a bill had been reserved, we could not say the court erred in the matter.
The evidence raised the issue of murder in the first degree, and the court did not err in submitting that degree of homicide to the jury.
The only other ground in the motion alleges newly discovered evidence. The affidavit was made before appellant's counsel. It has been the unbroken rule of decision in this court and the Supreme Court, that counsel in the case can not take such affidavits. Therefore, this is not presented in a way we can review the action of the court. (Maples v. The State,
The judgment is affirmed.
Affirmed.