Opinion
No. 12334.
Delivered February 20, 1929. Rehearing March 27, 1929.
1. — Carrying a Pistol — Motion for New Trial — Affidavits — Improperly Sworn to.
A motion for new trial, and affidavits in support thereof, sworn to before appellant's attorney cannot be considered. This rule is well settled. See Garner v. State, 272 S.W. 167.
2. — Same — Continued.
It is also well settled that when evidence is heard in the trial court in support of a motion for a new trial, such evidence must be brought forward in the record to be reviewed on appeal. See Sykes v. State, 2 S.W.2d 863.
ON REHEARING.3. — Same — Continued.
To present in a brief the facts or evidence developed on a hearing of a motion for a new trial in the court below is not sufficient. This court is controlled only by those things properly contained in the record.
Appeal from the County Court of Victoria County. Tried below before the Hon. J. J. Woodhouse, Judge.
Appeal from a conviction for carrying a pistol, penalty a fine of $100.00.
The opinion states the case.
J. D. Fowler of Victoria, for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
The offense is unlawfully carrying a pistol; the punishment a fine of one hundred dollars.
Appellant based his motion for a new trial on newly discovered evidence, and attached thereto the affidavits of parties whom he claimed would testify to the statements contained in said affidavits. The motion for a new trial was sworn to before appellant's attorney. It is further noted that the affidavits attached to the motion were sworn to before appellant's attorney. An attorney for the defendant is not authorized to take affidavits of the character shown herein. Garner v. State, 272 S.W. 167. It is recited in the order overruling the motion for a new trial that evidence was heard. Such evidence is not brought forward. We must therefore indulge the presumption that the court's action in overruling the motion was correct, and that the trial court acted upon evidence which was sufficient to justify his action. Sykes v. State, 2 S.W.2d 863.
The judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.
In support of the motion for rehearing appellant has filed a brief in which are found statements regarding evidence heard upon the motion for new trial. We have no reason to doubt the accuracy of such statements but are not authorized to consider them. This court is controlled only by those things properly contained in the record.
The authorities cited in the original opinion will be found to refer to many others which amply support the propositions under which they were cited.
The motion for rehearing is overruled.
Overruled.