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23 Tex. Ct. App. 458

Grate v. State

Court of Appeals of Texas

Decided June 8, 1887

Court of Appeals of Texas · decided 1887-06-08

Tried below before the Hon. W. E. Collard. The conviction in this case was for the rape of Tena Rogers, in Milam county, Texas, on the twenty-second day of July, 1886. The penalty assessed against the appellant was a term of five years in the penitentiary. Tena Rogers was the first witness for the State. She testified, in substance, that she lived on the place of Mr. Joe Askew, in Milam county, and was there employed as cook and housekeeper.

Decided 1887-06-08

White, Presiding Judge.

¶1If the testimony of the prosecutrix, Tena Rogers, is credible, then she was ravished by the appellant, and the punishment of five years in the penitentiary is an exceedingly mild one. It was for the jury and the court below to ascertain and pass upon her credibility, and the jury having found a verdict in accordance with her testimony, and the trial court having refused to set it aside, we must conclude that they believed her testimony to be true. If true, the evidence is sufficient.

¶2Only one other question appears of record. Should a new trial have been granted on the ground of newly discovered evidence? The main purpose of the-new testimony, as set out in the affi*462davits in support of the motion, appears to be to impeach the main State’s witness, the prosecutrix. The rule is well settled that a new trial will not be granted for newly discovered evidence to impeach a witness. (Posey’s Crim. Dig., p. 511, sec. 8128; Templeton v. The State, 5 Texas Ct. App., 398; Duval v. The State, 8 Id., 370; Atkins v. The State, 11 Id., 8; Jackson v. The State, 18 Id., 586.)

Opinion delivered June 8, 1887.

¶3We have found no reversible error in the record in this case, and the judgment is therefore affirmed.'

¶4Affirmed.

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