Acosta v. State (285 S.W.2d 764, 1955)

MORRISON, Presiding Judge.

The offense is the unlawful sale of beer in a dry area, with a prior conviction for an offense of like character alleged for enhancement; the punishment, 18 months in jail and a fine of $500.

Liquor Control Inspector Wilson and, City Policeman Foster testified that they drove up to a residence in the Latin-American section of the' City Of Lubbock on the night in question and a girl about 14 years old walked up to their automobile. They told her they wanted ■'

The sole question presented for review is the failure of the trial court to grant appellant’s motion for new trial based upon alleged newly discovered evidence. Appellant’s motion for new trial was sworn to by the appellant bfefore the attorney who represented him on the trial and on the' motion and cannot be considered. Ferguson v.' State, 159 Tex.Cr.R. 169, 261 S.W.2d 721, 722.

Wé observe, however, that tile court qualified the bill by certifying that no subpoena was issued for the missing witness Perfecto Hernandez prior to the trial, that no motion for. continuance was' filed prior to the trial setting forth the absence of. the witness, and that at the trial several witnesses testified that it was Per-fecto Hernandez instead of the appellant who made, the sale involvecl in this prosecution.- There was a complete lack of diligence shown. Gephart y. State,, 157 Tex. Cr.R. 414, 249 S.W.2d 612, is authority fpr , the rule that an accused cannot hold back a witness to insure a nevy trial if the ¡verdict goes against him.

Finding no reversible error, the judg-' ment of the trial court is affirmed.