Holloway v. State

• Decision Date: 16 June 1920
• Docket Number: (No. 5862.)
• Citation: 224 S.W. 1102
• Parties: HOLLOWAY v. STATE.
• Court: Texas Court of Criminal Appeals

224 S.W. 1102

HOLLOWAY v.STATE.

(No. 5862.)

Court of Criminal Appeals of Texas.

June 16, 1920.

On Motion for Rehearing, November 10, 1920.

Appeal from District Court, El Paso County; W. D. Howe, Judge.

A. Holloway was convicted of assault with intent to murder, and he appeals.Affirmed.

Breedlove Smith, of El Paso, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

MORROW, J.

The indictment and conviction were for assault with intent to murder, and punishment fixed at confinement in the penitentiary for two years.

According to the state's testimony, the appellant walked into the field where the injured party, McCoy, was at work.McCoy, as soon as he saw the appellant with a pistol, ran for his home, and was shot twice in the leg as he fled.His wounds were described by a physician.The appellant's theory and testimony was to the effect that, in approaching his home in an automobile, McCoy motioned to appellant to come to him, and on his doing so attempted to attack him with a pitchfork in his hands, and, failing to get over the fence, made a demonstration indicating an effort to draw a pistol.

The issues of fact were submitted to the jury in a charge of which we find in the record no complaint.A new trial was sought upon the grounds that improper evidence was received.In the absence of bill of exceptions reserved to the action of the court, his rulings upon the admission of evidence cannot be reviewed.Vernon's Texas Crim. Statutes, vol. 2, p. 535, note 15;C. C. P. art. 744.

Alleged newly discovered evidence is relied on as one of the grounds for a new trial.The failure to support the averments in motion for a new trial on this ground by the affidavits or testimony of the witnesses who know the newly discovered facts, or to account for the absence of such proof, renders it insufficient to overcome the presumption that in refusing to grant the new trial the judge did not abuse the discretion vested in him by the law.Vernon's Texas Crim. Statutes, p. 806, notes 13 and 14, and cases listed;Branch's Annotated Texas Penal Code, § 197.Accompanying the statement of facts we find some evidence, apparently introduced in support of the motion.The statement of facts, however, was not filed until after the adjournment of the court for the term at which the case was tried, and for that reason cannot be considered in support of the motion, as the law requires that facts adduced upon issues raised on the hearing of a motion for a new trial shall be filed during the term.Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116;Probest v. State, 60 Tex. Cr. R. 609, 133 S. W. 263.If considered, however, we think the evidence would not authorize a reversal of the judgment.

The evidence is sufficient to support the verdict, and there being nothing presented for review showing that the trial was other than a legal one, we are constrained to affirm the judgment.

On Motion for Rehearing.

In the light of the appellant's motion for rehearing, we have re-read and re-examined the record in this case.The reversal is sought in the main upon the receipt of evidence...