Opinion
No. 4824.
Decided January 23, 1918.
1. — Assault to Murder — Sufficiency of the Evidence.
Where, upon trial of assault with intent to murder, the evidence sustained the conviction under a proper charge of the court, there was no reversible error.
2. — Same — Newly Discovered Evidence — Motion for New Trial.
Where the statement of facts, heard on motion for new trial because of newly discovered evidence, was not filed until after the adjournment of the trial court, the same can not be considered on appeal; however, if considered, there is no reversible error. Following Reyes v. State, 196 S.W. Rep., 532.
Appeal from the District Court of Trinity. Tried below before the Hon. S.W. Dean.
Appeal from a conviction of assault with intent to murder; penalty, two years imprisonment in the penitentiary.
The opinion states the case.
No brief on file for the appellant.
E.B. Hendricks, Assistant Attorney General, for the State.
Appellant was convicted of an assault with intent to kill and assessed the lowest punishment.
The evidence was undoubtedly sufficient to sustain the verdict. Every issue raised was submitted by the court in an apt charge, to which there was no objection.
In his motion for a new trial he sought a new trial on the ground of claimed newly discovered evidence. He did not attach thereto the affidavit of the person whose testimony he claimed was newly discovered and his motion on this ground is wholly insufficient under the well established law pertaining thereto. However, the court heard the testimony on this ground and after hearing it overruled the motion. This evidence was attempted to be preserved in both a bill of exceptions and a statement of facts, but both filed in the lower court after the adjournment of the term, hence this question can not be reviewed by this court as has many times been held by it. Reyes v. State, 81 Tex. Crim. 588, 196 S.W. Rep., 533, and cases there collated.
There is nothing else to discuss. The judgment is affirmed.
Affirmed.