Augustine v. State

• Decision Date: 01 January 1857
• Parties: ROBERT AUGUSTINE v. THE STATE.
• Court: Texas Supreme Court

20 Tex. 450

ROBERT AUGUSTINE

v.THE STATE.

Supreme Court of Texas.

1857.

Where the defendant in a criminal case moved for a new trial on the ground of the misconduct of his counsel, supported by his own affidavit alone, and there was an affidavit of said counsel expressly denying such misconduct as charged, the motion having been overruled, this court refused to revise the judgment, on the ground that the judge below was better able to form a correct judgment on such a question thus presented.

The overruling of a motion for a new trial on the ground of newly discovered evidence will not be revised where there is no statement of the facts proved at the trial. 3 Tex. 49;7 Tex. 463;21 Tex. 485;28 Tex. 263.

If there were anything in the objection taken to the indictment by the motion in arrest of judgment (it charged the offense as committed at the county of Bexar, and the objection was that it did not charge that the offense was committed in said county), it was rightly overruled by authority of the act of 1854 (sec. 69, p. 70, then in force).

Appeal from Bexar. Tried below before the Hon. Thomas J. Devine.

Indictment of Robert Augustine for assault with intent to kill, on Francisco Perida and Jesus Perida. The indictment commenced, “State of Texas, county of Bexar,” etc.; described the grand jurors as elected, etc., to inquire in and for the body of the county of Bexar, state of Texas; and charged that “Robert Augustine, late of the county aforesaid, on the thirtieth of August, A. D. eighteen hundred and fifty-six, at the county aforesaid, in and upon the bodies of Francisco Perida and Jesus Perida feloniously did make an assault,” etc.

The jury found the defendant guilty of an assault with intent to kill Francisco Perida, and assessed the punishment at five years' hard labor in the penitentiary.

Defendant filed a motion for a new trial, supported by an affidavit in which he stated that he had been surprised and imposed upon by the mal-practice and mismanagement of his counsel; that said counsel had undertaken the sole and exclusive management of his case; that affiant had much other testimony material to his defense, and could and would have produced it, but that he was advised by his said counsel that he had already enough to acquit him, and that there was no danger of a conviction; that said counsel had accepted as a juror one J. N. McAllister, notwithstanding it appeared from a subpœna, returned served and then on file, that said McAllister had been subpœnaed as a witness for the state, which was unknown to affiant at the time; that affiant only knew said counsel as a lawyer of this court, and knew nothing further in regard to his integrity as a man or his skill in his profession.

The affidavit then continued in the usual form to state the discovery of new and material testimony, and was accompanied by the affidavits of the witnesses. The testimony went to prove that the Peridas made the assault with deadly weapons; that defendant, after retreating, obtained a pistol, and the Peridas then fled, and defendant fired two shots at one of them as he ran.

There was an affidavit of the counsel referred to on file, in which it was stated that affiant defended said defendant with all his skill and ability; that he caused to be sworn and examined all the witnesses that defendant directed him to call; that defendant urged a trial, and was willing to hazard it upon the...