McConnell v. State
| Citation | 200 S.W. 842 |
| Decision Date | 30 January 1918 |
| Docket Number | (No. 4843.) |
| Parties | McCONNELL v. STATE. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
Walter McConnell was convicted of robbery, and he appeals. Judgment reversed, and cause remanded.
McCutcheon & Church, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
Appellant was convicted of the robbery of Bert Curtis, who testified that appellant took money from his person while they were engaged in a tussle or fight.
The court refused to allow two of appellant's bills of exception, and he undertook to supply them by bystanders' bills which were filed after the time allowed by the court had expired. The motion for a new trial was supported by affidavits, and the record indicates that these were controverted in part by the state. The court prepared a bill preserving this testimony in lieu of appellant's bill, but the bill prepared by the court was filed after the term expired, and cannot be considered. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116. Without passing upon the controversy in regard to who was at fault with reference to the failure to file the bills of exception within the time required by law, we will say that the court tried the motion for a new trial on affidavits, declining to receive oral testimony. This he was privileged to do under articles 840 and 841, C. C. P.
The only evidence upon which we are authorized to consider the motion for a new trial is the affidavits and certified copies of records that are attached to it and filed during the term. It appears from these that the prosecuting witness Curtis had made an affidavit retracting the inculpatory testimony that he gave at the trial against appellant, and that the said prosecuting witness, Curtis, whose testimony was essential to the state, had been, in the year 1915, convicted of forgery. This conviction took place in a distant county, and was unknown to appellant or his counsel until the trial was practically ended. The motion for a new trial thus supported, we think, should have been granted. Mann v. State, 44 Tex. 642; Brown v. State, 13 Tex. App. 59; Vernon's C. C. P. p. 783, note 7, and cases cited.
The judgment of the lower court is reversed, and the cause remanded.
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