Nothaf v. State

• Decision Date: 11 January 1922
• Docket Number: (No. 6429.)
• Citation: 239 S.W. 215
• Parties: NOTHAF v. STATE.
• Court: Texas Court of Criminal Appeals

239 S.W. 215

NOTHAF v. STATE.

(No. 6429.)

Court of Criminal Appeals of Texas.

January 11, 1922.

Rehearing Denied April 5, 1922.

Appeal from Criminal District Court, Dallas County; Robert B. Seay, Judge.

John L. Nothaf was convicted of robbery, and he appeals. Affirmed.

John T. Spann, of Dallas, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

The offense is robbery; punishment fixed at confinement in the penitentiary for a period of 20 years.

The state, through the Assistant Attorney General, challenges the authority of the court to consider appellant's bills of exceptions. They reached the trial judge on the 13th of June, and were then approved. Appellant's counsel, on the day previous, which was Sunday, notified the clerk of the court that he had completed the bills. The final judgment was entered on March 29th, and it thus appears that the bills were given the judge for approval on the seventy-sixth day thereafter. The court was permitted to last more than 8 weeks, and the law allowed 30 days after final judgment within which to file the bills. It also allowed an extension of time by an order entered of record. Code Crim. Proc. art. 845. The only extension order found in the record is the one made on the 13th of May, extending the time 30 days from that date. There having been made and entered of record no order of extension within the 30 days allowed by law for filing bills of exceptions, there arises a question whether the order could lawfully be made after that date. Upon this subject the precedents are not clear. See Hart v. State, 86 Tex. Cr. R. 655, 218 S. W. 1054; Roberts v. State, 62 Tex. Cr. R. 9, 136 S. W. 483; Pecos & N. T. Ry. Co. v. Cox, 104 Tex. 556, 140 S. W. 1078; Couturie v. Crespi, 103 Tex. 554, 131 S. W. 403; Hamill v. Samuels, 104 Tex. 46, 133 S. W. 419. Whether in the instant case the court had the power to make the extension is not necessary to decide, for the reason that, giving the extension full scope, the bills were not filed in time. They were not tendered to the clerk until at least one day after the extension order expired, and they were incomplete for want of the approval of the judge. The trial judge promptly acted upon them on the seventy-sixth day, stating that he approved the bills and left the question as to whether they should be considered to the appellate court. In the absence of some sufficient reason for the delay, this court cannot consider bills of exceptions that are not filed within the time prescribed by the law of the state. Roberts v. State, 62 Tex. Cr. R. 7, 136 S. W. 483; Griffin v. State, 59 Tex. Cr. R. 424, 128 S. W. 1134; Armstrong v. State, 60 Tex. Cr. R. 59, 130 S. W. 1011; Hart v. State, 86 Tex. Cr. R. 655, 218 S. W. 1054.

A new trial was applied for because of newly discovered evidence. This is a statutory ground. Code of Crim. Proc. art. 837, subd. 6. To make it available, it must be shown: (a) That the evidence was unknown to the appellant before the trial; (b) that his failure to discover it was not due to his want of diligence; (c) that its materiality was such as would probably upon another trial bring about a different result; (d) generally, that it was competent, and not merely cumulative, corroborative, collateral, or impeaching. See Terry v. State, 3 Tex. App. 236; Duval v. State, 8 Tex. App. 370; White v. State, 10 Tex. App. 167; Fisher v. State, 30 Tex. App. 502, 18 S. W. 90; O'Hara v. State, 57 Tex. Cr. R. 581, 124 S. W. 95, and other cases in 2 Vernon's Texas Crim. Statutes, p. 777, note 1.

Preliminary to an inquiry into the merits of the motion based upon this ground, certain requisites are essential to require its consideration. First, it must be sworn to by the accused. Campbell v. State, 29 Tex. 491; Love v. State, 3 Tex. App. 501; West v. State, 2 Tex. App. 209; Branch's Ann. Texas Penal Code, §§ 193 and 195. In the instant case, the motion for new trial is not sworn to by the appellant. Second, the motion must be accompanied by supporting affidavits properly verified by an officer authorized to administer oaths other than the attorney for the accused. West v. State, 2 Tex. App. 209; Gross v. State, 4 Tex. App. 249; Garza v. State, 65 Tex. Cr. R. 476, 145 S. W. 591; Hogan v. State, 66 Tex. Cr. R. 498, 147 S. W. 871; Cuellar v. State, 69 Tex. Cr. R. 155, 154 S. W. 228; Peters v. State, 69 Tex. Cr. R. 561, 155 S. W. 212; Gordon v. State, 72 Tex. Cr. R. 285, 162 S. W. 522; Burnett v. State, 73 Tex. Cr. R. 477, 165 S. W. 581; Branch's Ann. Texas Penal Code, § 195. Accompanying the motion are several affidavits. The oath to all of those purporting to reveal new evidence was made before the attorney for the accused, the only exception being the affidavit of the attorney bearing upon another and different phase or subdivision of the motion.

Even if the affidavits intended to show that newly discovered evidence was available, they are inadequate to overcome the presumption in favor of the correctness of the court's action in overruling the motion. The evidence shows that G. B. Brannon was robbed. Appellant was identified by Brannon as one of his assailants. There were two of them, the appellant, being the larger, and a smaller man. The occurrence took place about 6:30 o'clock in the evening at the laundry belonging to Brannon, situated in the city of Dallas. Two other persons who were in the room with Brannon at the time of the robbery testified to the identity of the appellant, and another who was present testified that he answered the description that he held in his mind as one of the assailants of Brannon. None of the witnesses were previously acquainted with either the appellant or his alleged companion, Williams.

The only affidavit attached to the motion for new trial which, in a legal sense, bears upon the issue of the appellant's identity is that of Jim Thomas, which appears to have been made on the 30th day of March, which was the day after the motion for new trial was overruled. If it be assumed that it was considered by the court, its purport was to show that the witness was on the street on the evening that the robbery is charged to have taken place; that he saw two men near the laundry of Brannon, and saw them enter an automobile and speed away, and one of them say, "Tom, for God's sake, hurry;" one was a large middle-aged man, and the other a small young man; that by reports of the trial he was afterwards attracted to the court, and recognized Frank Williams, who seems also to have been charged with the offense, as the smaller and younger man, but declared that the appellant was not the other. Other affidavits contained averments that Frank Williams, after his arrest, had made declarations which exculpated the appellant. Williams did not testify, and his declarations would not have been admissible as original evidence in favor of the appellant. Bowen v. State, 3 Tex. App. 617; Holt v. State, 9 Tex. App. 571; Walsh v. State, 85 Tex. Cr. R. 215, 211 S. W. 241; Horton v. State (Tex. Cr. App.) 24 S. W. 28; Hodge v. State (Tex. Cr. App.) 64 S. W. 242.

The circumstances detailed in the Thomas affidavit, while material, were not of such character, in view of the other testimony in the case, as would authorize this court to decide that in overruling the motion for new trial the court abused its discretion. See 2 Vernon's Texas Crim. Statutes, p. 786, note 11, and cases there listed.

The absence of the affidavit of the appellant attached to the motion showing his lack of knowledge of the newly discovered evidence, the requisite of diligence is not complied with. Branch's Ann. Texas Penal Code, § 198, and cases there listed. It seems that, in addition to the affidavits which have been mentioned, there was testimony heard on the motion for new trial. It cannot be considered in support of it, for the reason that it was not filed during the term of court at which the case is tried. The necessity that this be done has been repeatedly declared. See Black v....