Opinion
No. 5444.
Decided November 19, 1919.
1. — Murder — Manslaughter — Sufficiency of the Evidence.
Where, upon trial of murder and a conviction of manslaughter, the evidence was sufficient to sustain the conviction under a proper charge of the court, there was no reversible error.
2. — Same — Newly Discovered Evidence — Motion for New Trial.
Where the motion for new trial alleging newly discovered evidence was not supported by proper proof, and the same testimony could have been introduced upon trial in the District Court, the same was correctly overruled.
Appeal from the District Court of McLennan. Tried below before the Hon. Richard I. Monroe, judge.
Appeal from a conviction of manslaughter; penalty, five years imprisonment in the penitentiary.
The opinion states the case.
W.H. Stewart, and T.J. Leftwich, for appellant.
E.A. Berry, Assistant Attorney General, for the State.
Appellant was indicted for the murder of Steve Cinek, convicted of manslaughter, and given a term of five years in the penitentiary.
No 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.
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.
No error appearing in the record, the judgment of the trial court is affirmed.
Affirmed.