Opinion
No. 12429.
Delivered April 10, 1929. Rehearing denied June 5, 1929.
1. — Theft of Cattle — Accomplice Testimony — Sufficiently Corroborated.
Where a state's witness admitted that he had loaned appellant the horse which he was riding on the night of the alleged theft, even though said witness be regarded as an accomplice his testimony was sufficiently corroborated by other evidence.
2. — Same — New Trial — For Newly Discovered Evidence — Discretion of Court — Rule Stated.
Where appellant moved for a new trial on the ground of newly discovered evidence, and the order of the court pertaining to this matter recites that evidence was heard, and such evidence is not brought up in the record, we will presume that the action of the trial court in overruling appellants motion was in the proper exercise of his judicial discretion. See Burrell v. State, 11 S.W.2d 794 and Cooper v. State, 13 S.W.2d 834.
3. — Same — Bill of Exception — Incomplete — Presents Nothing for Review.
Where a bill of exceptions complains that appellant was not permitted on cross-examination to elicit certain answers from a witness and the answers expected are not set out in the bill, nothing is presented in such bill for review.
ON REHEARING.4. — Same — New Trial — Practice On Appeal.
Where the order overruling the motion for a new trial states that evidence was heard thereon, the action of the trial judge will be presumed on appeal to have been supported by the evidence heard, unless a transcript of such evidence is brought forward for review. See Fisher v. State, 5 S.W.2d 976 and other cases cited.
5. — Same — Continued.
Where the newly discovered evidence set out in support of the motion for a new trial, is cumulative of the conceded fact that a state's witness was an accomplice, and in part tends to impeach his credibility, this does not present proper grounds for a new trial. See Cooper v. State, 103 Tex.Crim. Rep..
6. — Same — Bill of Exceptions — Incomplete — Presents No Error.
Where a bill of exceptions complaining of the exclusion of evidence, points out that the matters complained of are set out in the motion for a new trial, it is not sufficient. That a motion for a new trial cannot be made a substitute for a bill of exceptions has been a rule of practice throughout the history of this court. See Jones v. State, 9 S.W.2d 347 and other cases cited in opinion on rehearing.
Appeal from the District Court of Liberty County. Tried below before the Hon. Thos. B. Coe, Judge.
Appeal from a conviction for theft of cattle, penalty, two years in the penitentiary.
The opinion states the case.
Hale Etter of Houston, for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
Offense, cattle theft; penalty, two years in the penitentiary.
The hide of a freshly slaughtered yearling was found on a river bank. It was identified as having come from a missing yearling belonging to W. T. Matthews. A search revealed the tracks of a horse which had apparently circled an animal. The tracks of this horse were of a peculiar nature and their trail led to the home of appellant. There officers found some specks of blood on the gallery and freshly washed men's clothes with some specks on them which appeared to be blood. It was further shown that some fresh beef was found near the home of appellant. A horse whose tracks appeared identical with those referred to was also found and is shown to have belonged to one Bill Turner. Turner testified that appellant had borrowed this horse on the night the animal is supposed to have been stolen. He testified also to other incriminating facts.
It is claimed that Turner was an accomplice and was not sufficiently corroborated. We are of the opinion that the facts, a brief statement of which is shown above, were sufficient to corroborate Turner, under rules of law regarding such matters too frequently stated to here need repetition.
The appellant claims error in the action of the Court in overruling his motion for new trial for newly discovered evidence. The order of the Court pertaining to this matter recites that evidence was heard. Such evidence is not brought up in the record. Under these circumstances we must presume that the action of the trial court in overruling appellant's motion regarding this matter was correct. Burrell v. State, 11 S.W.2d 794; Cooper v. State, 13 S.W.2d 834.
It is further complained that appellant was not permitted on cross examination to elicit certain answers from the witness Turner. The answer or answers expected are not set out in the bill. The bill, we think, is deficient in other respects and presents nothing for review. Serna v. State, 7 S.W.2d 543; Harrison v. State, 12 S.W.2d 795.
Finding no error in the record, 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.
The announcement made in the original opinion to the effect that when the order overruling the motion for new trial states that the evidence was heard thereon this court is not in a position to know what influenced the trial judge when the record is void of statement of facts or bills of exception revealing the evidence before him is supported by the precedents. On appeal the presumption is conclusive that the ruling of the trial court was warranted by the evidence heard by it when considering the motion for new trial. Fisher v. State, 5 S.W.2d 996. Part of the alleged newly discovered evidence is cumulative of the conceded fact that Bill Turner was an accomplice witness and in part tends to impeach his credibility. There was no abuse of discretion in overruling the motion for new trial. Cooper v. State, 103 Tex.Crim. Rep.; Vernon's Tex. C. C. P., 1925, Vol. 3, pp. 29-30, notes 32-33.
The bill of exceptions is imperfect but if given full effect the evidence sought was not of importance such as would warrant a reversal. From the bill it appears that counsel asked in what business other than farming the witness Bill Turner was engaged. As shown by the motion for new trial the answer expected was that he peddled meat. It is suggested that the facts covering the matter are set out in the motion for new trial. That a motion for new trial cannot be made a substitute for a bill of exceptions has been a rule of practice throughout the history of the court. See Jones v. State, 9 S.W.2d 347; Ramos v. State, 298 S.W. Rep. 431; Holmes v. State, 293 S.W. Rep. 571; Holliday v. State, 100 Tex.Crim. Rep.; Burrell v. State, 11 S.W.2d 795.
Upon the record before us, we are constrained to overrule the motion for rehearing.
Overruled.