Barber v. State
| Citation | 31 S.W. 649 |
| Parties | BARBER v. STATE. |
| Decision Date | 26 June 1895 |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Appeal from district court, Lamar county; E. D. McClellan, Judge.
John Barber was convicted of robbery, and appeals. Affirmed.
R. L. Ross and Frank Lee, for appellant Mann Trice, Asst. Atty. Gen., for the State.
Appellant was convicted of robbery, given 20 years in the penitentiary, and prosecutes this appeal. There are no bills of exception contained in the record. There were two issues presented by the evidence for the consideration of the jury, robbery and alibi. These issues were submitted by the charge in correct and appropriate terms. After a careful review of the evidence, we are of opinion the verdict is fully justified by the testimony. As a ground of the motion for a new trial it is alleged that one Frank Austin would testify on another trial, if present, that the injured party made to him statements at variance with his testimony delivered on the trial. The motion for a new trial is not sworn to, nor does the affidavit of appellant or his counsel accompany the motion. This is in no sense a compliance with the law, and, besides, the testimony is strictly and purely impeaching in its character and effect. Willson's Cr. St. § 2544.
If the remarks of state's counsel occurred, as stated in the motion for a new trial, they should have been objected to at the time, and perpetuated in a bill of exceptions. This was not done. Willson's Cr. St. § 2321; Mason v. State, 15 Tex. App. 534; Jackson v. State, 18 Tex. App. 586; Watson v. State, 28 Tex. App. 34, 12 S. W. 404; Wilson v. State, 32 Tex. Cr. R. 22, 22 S. W. 39; Davis v. State, 32 Tex. Cr. R. 377, 23 S. W. 794; Wolforth v. State, 31 Tex. Cr. R. 387, 20 S. W. 741. The evidence is sufficient to sustain the verdict, and the judgment is affirmed.
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...to be raised in the motion for new trial, such grounds should be verified by the affidavit of the appellant" — citing Barber v. State, 35 Tex. Cr. R. 70, 31 S. W. 649. See, also, Serop v. State, 154 S. W. 558. This court has uniformly and in many cases held that an affidavit attacking the v......
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...202 of his Annotated P. C., Mr. Branch cites probably a hundred cases in support of this proposition; among others, Barber v. State, 35 Tex. Cr. R. 70, 31 S. W. 649, in which Judge Davidson said: "As a ground of the motion for a new trial it is alleged that one Frank Austin would testify on......
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...Case, in answer to appellant's complaint that he had failed to find any such case, Judge Harper said: "If he will read Barber v. State, 35 Tex. Cr. R. 70, 31 S. W. 649, he will find a case so holding, and this has always been the Judge DAVIDSON himself wrote the opinion in said Barber Case,......
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