Opinion
No. 12239.
Delivered February 6, 1929.
1. — Bigamy — New Trial — Sworn to Before Defendant's Attorney — Cannot Be Considered.
Where a motion for a new trial setting up newly discovered evidence is sworn to by the appellant before his own attorney it is insufficient. An attorney for the defendant is not authorized to take affidavits to be used in the case in which he represents the defendant. See Garner v. State, 272 S.W. 167.
2. — Same — Continued.
Where it is shown in the record that in the order overruling the motion for a new trial that evidence was heard on the motion, and such evidence is not brought forward, this court will indulge the presumption that the trial court's action in overruling the motion was correct, and that the trial court acted on evidence which was sufficient to justify his action. See Sykes v. State, 2 S.W.2d 863.
Appeal from the District Court of Wilbarger County. Tried below before the Hon. Robert Cole, Judge.
Appeal from a conviction for bigamy, penalty five years in the penitentiary.
The opinion states the case.
No brief filed for appellant.
A. A. Dawson, State's Attorney, for the State.
The offense is bigamy; the punishment confinement in the penitentiary for five years.
One question is presented for review. Appellant based his motion for a new trial on newly discovered evidence, and attached thereto a letter claimed to be newly discovered evidence. The motion for a new trial was sworn to before appellant's attorney. An attorney for the defendant is not authorized to take affidavits to be used in the case in which he represents the defendant. Garner v. State, 272 S.W. 167. It is recited in the order overruling the motion for a new trial that evidence was heard. Such evidence is not brought forward. We must therefore indulge the presumption that the court's action in overuling the motion was correct, and that the trial court acted upon evidence which was sufficient to justify his action. Sykes v. State, 2 S.W.2d 863.
The judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.