
    SMITH v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1914.)
    Criminal Law (§ 938) — New Trial — Newly Discovered Evidence in General.
    The overruling of a motion for a new trial, presenting affidavits of two witnesses that they heard a conversation in which the prosecuting witness authorized defendant to sell the animal he was charged with stealing, qualified by the court’s statement that it was not filed until 30 days after trial, was contradictory of defendant’s own testimony, and was not newly discovered evidence, in that defendant knew or could have known of their testimony, was not error.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2306-2315, 2317; Dec. Dig. § 938.]
    Appeal from District Court, Grimes Coanty; S. W. Dean, Judge.
    Sam Smith was convicted of cattle theft, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
    
   DAVIDSON, J.

Appellant was convicted of cattle theft; his punishment being assessed at two years in the penitentiary.

There are no bills of exceptions in the record. The state contends that appellant sold the animal in question. This is conceded by appellant. Appellant’s contention is that he had authority from the Richardsons to sell the calf in question, and for which they paid him. This is denied by the Richardsons. They claim they had authorized him to sell one yearling, but not the calf in question. Appellant sold two, for which he received the money. We are of opinion the jury was justified in finding appellant guilty under the state’s ease.

Among other things, appellant moved for a new trial, alleging newly discovered evidence. This was to show in effect by two witnesses that Richardson authorized appellant to sell the calf in question; that they heard Richardson tell defendant to sell it. In other words, without going into a detail statement of the affidavits of the two witnesses, it is' shown by them that they overheard a conversation between Richardson and defendant, in which defendant was authorized by Richardson to sell the animal. These affidavits, the judge' says, were not filed for 30 days after the trial, and were contradictory of appellant’s testimony on the trial, he having testified in his own behalf, and were not newly discovered, in that these witnesses overheard the conversation and placed them in such position as defendant knew or could have known of their testimony. In the light of the record, we do not feel authorized to overrule _ the judge’s conclusion on this matter.

The other matters set up in the motion for new trial are so generally stated that they are nonreviewable.

The judgment is affirmed.  