Gerlich v. State

Decided November 19, 1919

Court of Criminal Appeals of Texas · decided 1919-11-19

1. Cbiminal law <3=958(6) — New tbial fob NEWLY DISCOVEEED EVIDENCE. An affidavit of only one witness to the effect that the main witness was hostile to accused was not sufficient to require the granting of a motion for a new trial on the ground of newly discovered evidence. 2. Cbiminal law <3=939(1) — New tbial fob NEWLY DISCOVEBED EVIDENCE. On motion for a new trial on the ground of newly discovered evidence, defendant should show why the evidence was not offered on the trial, or that it was unknown to defendant or his attorney and could not have been discovered by the use of reasonable diligence.

Affirmed · Decided 1919-11-19

LATTIMORE, J.

¶1Appellant was indicted for the murder of Steve Cinek, convicted of manslaughter, and given a term of five years in the penitentiary.

¶2No objections to any of the evidence, or to the charge of the court, appear in the record. The indictment is in correct form, and the charge of the court substantially presents the law of the case.

¶3[1, 2] Appellant’s motion for a new trial sets up newly discovered evidence, but Is supported by no proof introduced. It is accompanied by the affidavit of only one witness, who swears, in effect, that the main witness was hostile to appellant. This is not sufficient; nor is it shown in any way why said evidence was not offered on the trial, nor that it was unknown to appellant or his attorney and could not have been discovered by the use of reasonable diligence. The contention that the evidence is insufficient is not borne out by the record.

¶4No error appearing in the record, the judgment of the trial court is affirmed.