
    GOMEZ v. STATE.
    (No. 4184.)
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1916.)
    1. Criminal Law <@=>956(2) — New Trial — Necessity for Affidavit — Newly Discovered Evidence.
    A motion for new trial on the ground of newly discovered evidence, not supported by affidavit, cannot be considered.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2396; Dec. Dig. <§==>956(2).]
    2. Criminal Law <@=>1159(3) — Appeal — Verdict — Conflicting Evidence.
    Where the state’s evidence was clear and positive as to defendant’s guilt, though contradicted by defendant’s testimony, a verdict of guilty cannot be disturbed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3076; Dee. Dig. <§=>1159(3).]
    Appeal from District Court, Fayette County; Frank S. Roberts, Judge. .
    Nicholas Gomez was convicted of murder and sentenced to 25 years’ imprisonment, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of murder; his punishment being assessed at 25 years’ confinement in the penitentiary.

No bills of exception were reserved, and no objection to the charge was presented. There is set up in the motion for a new trial the statement that there was newly discovered evidence. There is nothing to support this statement in the way of an affidavit. It is therefore not discussed.

The only other matter pertains to the sufficiency of the evidence. That for the state is clear and positive that appellant shot and killed deceased, another Mexican. Appellant’s contention was that deceased was shot by another party. To sustain this he introduced evidence. The jury believed the state’s witnesses, and we would not feel authorized to disturb the finding of the jury.

The judgment is affirmed.  