Dukes v. State

• Decision Date: 03 June 1914
• Docket Number: (No. 3152.)
• Citation: 168 S.W. 96
• Parties: DUKES v. STATE.
• Court: Texas Court of Criminal Appeals

168 S.W. 96

DUKES v. STATE.

(No. 3152.)

Court of Criminal Appeals of Texas.

June 3, 1914.

Rehearing Denied June 26, 1914.

Appeal from District Court, Rusk County; W. C. Buford, Judge.

Frank Dukes was convicted of manslaughter, and he appeals. Affirmed.

Beard & Davidson, of Marshall, and Futch & Tipps, of Henderson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Under an indictment for murder, appellant was convicted of manslaughter, and assessed the lowest punishment. We have carefully read and studied the statement of facts. The great preponderance of the evidence clearly shows appellant's guilt — in fact, would have justified a higher offense and a greater punishment. Doubtless the skillful management of his able attorneys succeeded in preventing this.

Appellant made no motion for a continuance. In his motion for new trial he claimed that he was promised the attendance of a negro woman as a witness and that she would have impeached one of the state's material witnesses. The record shows that by any ordinary diligence she could have been procured and testified on the trial. It has so many times been held that, even where diligence has been used, the court commits no error in refusing a motion for continuance because of the absence of a witness whose testimony would merely impeach another witness, and that such evidence cannot be ground for a new trial as newly discovered evidence, that it is unnecessary to cite or collate the cases.

The only other ground for a new trial is that after the trial appellant discovered new evidence. He swore to his motion on that ground. He did not attach the affidavit of any one, nor of any of the claimed witnesses by whom he expected to prove newly discovered evidence in support of his motion. However, the court, in considering his motion for new trial on this ground, heard a large number of witnesses, and heard all those, it seems, whom he presented by whom he would show newly discovered evidence, and after hearing all this the court overruled the motion.

There is in the record what purports to be a statement of the facts showing all the testimony the court heard in considering appellant's motion for new trial. It has been so uniformly held by this court, and so well established, that such statement of facts, however preserved, must be filed during term time in order to be considered by this court, that we deem it unnecessary to collate the authorities; but see Hoskins v....