
    HOLMES v. STATE.
    (No. 10135.)
    Court of Criminal Appeals of Texas.
    Dec. 15, 1926.
    Rehearing Denied April 27, 1927.
    I.Criminal law <&wkey;l 124(4) — Motion for new trial for newly discovered evidence cannot be considered by appellate court, absent evidence submitted on motion.
    Order overruling motion for new trial on ground of newly discovered evidence cannot be reviewed by appellate court, where evidence be-for trial court when motion was overruled was not brought before appellate court by bill of exceptions or statement of facts.
    On Motion for Rehearing.
    2. Criminal law &wkey;>l 110(6) — Attaching to motion for rehearing affidavits to show statement in order denying new trial was erroneous is not authorized method of correcting record.
    Defendant’s attempt to correct record on appeal, by attaching to his motion for rehearing affidavits of counsel and court reporter, showing that statement in trial court’s order overruling motion for new trial was erroneously and negligently inserted by clerk of court in preparing order, is not authorized procedure to correct record.
    3. Criminal law <&wkey;939(2) — New trial in murder prosecution for newly discovered evidence held properly denied for lack of diligence.
    New trial in murder prosecution for newly discovered evidence held properly denied for lack of diligence, where some of witnesses resided near place of homicide, one was a police officer who knew deceased for many years and whose testimony could easily have been obtained before trial, and names of others could have been ascertained by diligence before or during trial.
    Commissioners’ Decision.
    Appeal from District Court, Bowie County ; Hugh Carney, Judge.
    Maurice Holmes was convicted of murder, and he appeals.
    Affirmed.
    Lincoln & Barkman, of Texarkana, for appellant.
    . Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BETHEA, J.

The appellant was convicted of murder in the district court of Bowie county and sentenced to ten years’ confinement in the penitentiary.

There being no bills of exceptions in the record, this leaves the action of the trial court in overruling the appellant’s motion for a new trial, based on the ground of newly discovered' evidence, the only question to be reviewed.

The record discloses that the evidence upon which the trial judge based his decision in overruling the motion for new trial is not brought before this court either by a bill of exceptions or statement of facts. The motion for new trial contains averments, and attached to the motion are affidavits supporting the averments which would be considered by this' court if the record failed to disclose that the trial court heard other evidence upon the hearing of the motion. It appearing, however, from the order of the trial court overruling the said motion, that the court “heard the said motion and the evidence thereon submitted,” this court, following the rule laid down in Crouchette v. State, 99 Tex. Cr. R. 572, 271 S. W. 99, cannot review the order overruling the motion for new trial in the absence of the evidence which was evidently before the trial court, as shown by said order overruling the motion for new trial. See, also, Reyes v. State, 81 Tex. Cr. R. 592, 196 S. W. 532; Lopez v. State, 84 Tex. Cr. R. 422, 208 S. W. 167; Wilson v. State, 99 Tex. Cr. R. 561, 271 S. W. 104.

There being nothing more left for the court to review, and the facts being amply sufr fieient to support the verdict of the jury, the judgment will be affirmed.

PER CURIAM. 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.

BETHEA, J.

Appellant contends that this court erred in holding, in its original opinion, that evidence was submitted to the trial court when it heard appellant’s motion for a new trial, and ^asserts that the only matter presented for consideration was appellant’s motion for a new trial with affidavits attached, and that the statement, in the order of the trial court overruling appellant’s motion for new trial, to the effect that the court heard evidence thereon, was erroneously and negligently inserted by the clerk of the court in preparing the order; and undertakes to perfect the record by attaching to his motion for rehearing affidavits of counsel and the court reporter, which said affidavits show that the statement in the order of the trial court overruling the said motion for new trial was erroneously and negligently inserted by the clerk of the court in preparing the order.

We know of no rule of procedure authorizing the correction, in this manner, of the matter complained of. However, we have carefully reviewed appellant’s motion for new trial, together with the six affidavits thereto attached. Said motion for new trial is based on newly discovered evidence; it being contended that the six witnesses, who have each made affidavit as to what they would have testified if present at the trial, did not make known their knowledge of the facts set out in their affidavits until after the appellant was convicted. Said motion also alleges that counsel made an effort to ascertain the name and address of every person who knew anything about the facts. From a careful examination of the statement of facts, as well as the affidavits of the' six witnesses, we have concluded that the said motion for new trial does not show the exercise of proper diligence.

The affidavit of the .first witness, T. L. Brown, whose testimony appellant contends is.newly discovered, discloses that Brown, if present, would have testified as follows:

“I have known Maurice Holmes all my life. I have known Daniel Sims all my life. During the past summer (1925), Maurice Holmes, Daniel Sims, and myself, along with three others, were arrested by the officers for gaming.”

The appellant testified:

Deceased “told me I couldn’t stay in town as long as he was in town, and I went home and told my father that I was afraid Dan would kill me and told him I was going to Smaekover. My father testified on the examining trial. T. L. Brown was there when Dan told me that one time; I suppose he is in town. I did not have him summoned up here as’ a witness.” Statement of Facts, p. 42.

Marcella Jones, in rebuttal for the state, testified as follows:

“I remember the Sunday that Daniel Sims was killed. The first time I saw Daniel that day was between 8:30 and 9 o’clock that morning when I saw him on Elm street. There wasn’t any one with him then except T. L. Brown. They was together and was going up on Twelfth and Elm, and I was going down to Gussie Herd’s.” Statement of Facts, p. 49.

It occurs to us that, if appellant had used any diligence whatever, or made any inquiry of Brown touching information that he might possess, appellant ‘‘could certainly have had Brown present at the trial.

The witness Jane White, whose testimony is shown in an affidavit attached to the motion for new trial, states that she lived at 911 West Seventh street; that she lived there for the past 12 years; that she was acquainted with Maurice Holmes, the appellant ; that she had known him for the past 14 years. Judging from her street address, she has lived in the neighborhood of the killing for over 12 years. Neither the motion for new trial nor the affidavit show that she had ever been questioned by any one about this case. It occurs to us that, if the appellant or his attorney had made proper inquiry in and about the neighborhood and scene of the killing, they would have learned something about any information she might possess.

The affidavits of Turk Scott and Richard Reed, also attached to the appellant’s motion for new trial as newly discovered evidence, show that the killing took place within a few feet of where the witness Turk Scott lived and in front of the house where the witness Richard Reed lived. Proper diligence would have prompted either the appellant or his counsel to have made inquiries of those living in the immediate vicinity, and especially within a few feet of the scene of the killing.

The affidavit of the witness Lummus, whose testimony appellant contends is newly discovered, shows that he had been á resident of- Texarkana, Ark., for 21 years, that he had been on the police force of said city for the past 16 years, and for 2 years was chief of police, and that he had known the deceased, Daniel Sims, for tlte past 16 years, during the entire time he had been on the police force. It does seem to ns that counsel should have made some inquiry of the officers as to the character of the deceased, and, if he had, he could have easily learned in advance of the trial the facts as detailed in this affidavit.

Pauline Williams, according to her affidavit, was present at the scene of the killing, and an inquiry of the witness Marcella Jones, who testified in rebuttal for the state, would have apprised appellant’s counsel and appellant of that fact, for, when we read Marcella Jones’ testimony in rebuttal, we find where she testified as follows:

“Maurice and Dan met up; there was three.or four others along there, and they was all going down the street, and Maurice was going meeting Dan; him and Pauline Williams and Ed Majors were together. I do not know where Pauline is.” Statement of Pacts, p. 52.

No reason is shown why the appellant or his counsel was unable to ascertain from all these witnesses, either before or during the trial, the facts which they later revealed in their affidavits.'

It appearing from the statement of facts in this ease, and also from the affidavits attached to the motion for new trial, that the appellant utterly failed to show any diligence in ascertaining who the witnesses were and what their testimony would be, we do not think the learned trial judge erred in overruling said motion for new trial.

Believing the conclusion reached in our original opinion is correct, the motion for rehearing is overruled.

PER CURIAM. 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. ' 
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