Lee v. State (135 S.W. 1174, 1911)

DAVIDSON, P. J.

Appellant was convicted of violating the local option law; his punishment being assessed at a fine of $25 and 20 days’ imprisonment in the county jail.

1. Appellant’s motion for new trial recites that the court was requested to set aside the conviction, because it committed error in not permitting the defendant to introduce the evidence of John Huff and G. H. Lee for the purpose of impeaching the testimony of the prosecuting witness Payne. There was no bill of exception reserved; therefore this matter cannot be considered.

2. In the next ground of the motion appellant contends that the verdict is not supported by the law and the evidence, because appellant introduced two credible witnesses, Huff and Lindsey, who testified that they were acquainted with the general reputation of the prosecuting witness Payne for truth and veracity, and that it was had. And defendant also proved by reputable witnesses, John Hull and Payette Sellers, that they knew his (appellant’s) general reputation for truth and veracity and a peaceable and law-abiding citizen, and it is good. The evidence was sharply contested on the trial; the state showing that appellant sold the whisky to Payne, and appellant denying this by his testimony. The fact that the witness’ testimony is attacked does not make the verdict of the jury unsupported by the evidence. The jury are the judges of the facts, credibility of the witnesses, and weight to be given their testimony.

■. 3. Appellant also alleges error on the part of the trial court in not granting a new trial for newly discovered evidence, and attaches the affidavit of Antonio Poloa. This affidavit shows that the affiant lived in Abilene about three years, and was present on the evening of the 23d of January, 1910, when appellant and three other white men were playing poker in a Mexican cellar on Mesquite street in Abilene. [3] Without setting out the contents of the affidavit, it is apparent therefrom that he was present at and saw the gaming, and knew about the whisky transaction. This was not newly discovered evidence. Appellant and the affiant were both present at the game, and knew the Tacts, and appellant himself does not swear that it was newly discovered. This affidavit is not brought within the rule in regard to newly discovered evidence. Appellant says be was not in possession and could not procure the-testimony of Eoloa at the time of the trial in the county court, which occurred on April 22d. There was no attempt on the part of appellant, so far as this record is concerned, to have the absent witness Eoloa present at the trial, although he knew of his presence at the game of cards.

4. He also moves for a new trial on account of the testimony of Kenzie. Appellant signs this affidavit, and states that since the trial of his case he had located the absent witness, who was one of the boys engaged in the poker game, and present at the time of the alleged sale of whisky. He further states he is now informed that Kenzie is in Ft. Worth, and that in the event of a new trial Kenzie would testify that appellant did not sell any whisky to Payne, the alleged purchaser. There was no attempt, so far as this record is concerned, to have Kenzie present. No process is shown to have been issued for him. This is clearly not newly discovered testimony.

The judgment is affirmed.