146 S.W. 169 | Tex. Crim. App. | 1912
Appellant was indicted, tried and convicted of the offense of robbery, his punishment being assessed at five years imprisonment in the penitentiary.
In his motion for new trial there are but three grounds — the first complaining of the action of the court in overruling his application for a continuance on account of the absence of three witnesses. As to the witness Adelle Anderson (or Henderson) she appeared and testified on the trial of the case, and as to the witness Ivy Chambers, the application is insufficient in law, in that it does not allege that the witness Chambers is not absent by the procurement and consent of appellant. In fact, the way the application is worded it would indicate that this witness was absent by the consent and procurement of appellant, but whether by his procurement or with his consent or not, an application that does not so state is insufficient in law. (White v. State, 9 Texas Crim. App., 41; Cocker v. State,
In his second ground, appellant asked a new trial on account of alleged newly discovered evidence. On the trial of this case, the prosecuting witness positively identified appellant as the man who knocked him down and robbed him. The affidavit of J.K. Stell is attached, wherein he states that the prosecuting witness had told him (Stell) he (the witness) was sitting down sleeping when he was hit and robbed and did not see the man who robbed him. The witness Stell does not claim to know any fact connected with the case, but only states facts which would tend to impeach the prosecuting witness, alleging that he had told him (Stell) certain things. It has been held in a number of cases that newly discovered evidence will not authorize a new trial if the purpose and effect of such evidence be merely to discredit or impeach a witness who has testified on the trial. Barber v. State,
The only other ground in the motion alleges the insufficiency of the testimony. The testimony for the State fully supports the verdict.
The judgment is affirmed.
Affirmed.
[Rehearing denied April 24, 1912. — Reporter.] *201