Opinion
No. 17827.
Delivered January 15, 1936. Rehearing Denied March 4, 1936.
1. — Murder — Evidence.
Evidence held sufficient to support conviction for murder.
ON MOTION FOR REHEARING.2. — Rehearing — Ex Parte Affidavits.
Court of Criminal Appeals cannot consider original ex parte affidavits by witnesses or jurors attached to a motion for rehearing in said court, since such matters must be presented to the trial court in the first instance.
Appeal from District Court of San Jacinto County. Tried below before the Hon. J. L. Manry, Judge.
Appeal from conviction for murder; penalty, confinement in penitentiary for four years.
Affirmed.
The opinion states the case.
E. E. Fuller, of Houston, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is murder; the punishment, confinement in the penitentiary for four years.
It was charged in the indictment, in substance, that appellant, with malice aforethought, killed Mann Mimms by shooting him with a gun.
The homicide occurred on the 19th of June, 1933, at a negro celebration. According to the testimony of the State, appellant and George Syphret each shot deceased, appellant using a pistol and Syphret, a shotgun. The State's testimony was to the effect that deceased was making no demonstration at the time he was shot and that he was unarmed. Appellant did not testify in his own behalf, but introduced witnesses who testified that deceased was attacking appellant at the time the fatal shots were fired.
The evidence is deemed sufficient to support the conviction.
No bills of exception are brought forward.
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.
Appellant seeks to bring before us by means of their affidavits, the proposition that certain jurors who sat upon the trial of his case, were influenced in the jury room by statements which they deemed to reflect upon appellant. This court cannot consider original ex parte affidavits made by witnesses or jurors and attached to a motion for rehearing such as here appears. The matters contained in said affidavits are now here attempted to be set up for the first time. Examination of the original motion for new trial in the court below makes plain the fact that no such matters were brought before the trial court. This court is in no sense a nisi prius court, and all matters such as those above referred to must be presented to the trial court in the first instance, failing in which they can only be presented to the Chief Executive, who has pardoning power.
The motion for rehearing is overruled.
Overruled.