
    THOMAS v. STATE.
    (Court of Criminal Appeals of Texas.
    March 8, 1911.)
    1. Ckiminal Uaw (§ 1097) — Statement or Facts — Evidence.
    Assignments in a motion for a new trial as to the insufiiciency of the evidence to convict cannot be considered on appeal, in the absence of a statement of facts.
    [Ed. Note. — For other cases, see Criminal Uaw, Cent. Dig. §§ 2862-2864; Dec. Dig. § 1097.]
    2. Ckiminal Uaw (§ 939) — New Teial — Diligence.
    A motion for new trial on the ground of newly discovered evidence is insufficient, in the' absence of a showing of diligence.
    [Ed. Note. — For other cases, see Criminal Uaw, Cent. Dig. §§ 2318-2323; Dec. Dig. § 939.]
    Appeal from Brazos County Court; A. G. Board, Judge.
    Son Thomas was convicted of aggravated assault,, and he appeals.
    Affirmed.
    ■C. E. Dane, Asst. Atty. Gen., for the State,
    
      
      Por other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes.
    
   PRENDERGAST, J.

By complaint and information the appellant was charged to have committed an aggravated assault on a female, he being an adult male, on June 25, 1910. The appellant waived a jury, and the case' was tried before the court. He was fined $50 and 30 days in jail.

There is no statement of facts or bill of exceptions in the record. A motion for new' trial was filed and overruled, which sets up many things as to the insufficiency of the evidence to convict. There being no statement of facts, none of these matters can be considered.

In the motion the appellant sets up that upon another trial he can adduce additional evidence, which will tend to establish his defense, and attaches the affidavits of several persons. The assault was alleged to have been made upon Novella Rodgers. These affidavits are to the effect that said Novella Rodgers made admissions to some of the af-fiants that the appellant had agreed to give her a dollar and a half if she would have sexual intercourse with him, and that he had only given her- otfe half dollar, and she thereupon refused him; that he tried to take .the half dollar away from her. They also show by the affidavits that Novella Rodgers has the reputation of being a prostitute, and her reputation for virtue and chastity is bad, and that she had been drinking some just prior to this claimed assault. The motion further sets out that the appellant did not employ an attorney to represent him in the trial of the case, but represented himself; that after he was convicted he employed an attorney, who filed the motion for him. He further says in the motion that he did not know at the time of the trial what these witnesses whose affidavits were afterwards procured would testify, but shows no diligence whatever in attempting to procure any testimony at all.

In the absence of a statement of facts and bill of exceptions, the motion does not show error in the court below in not granting- a new trial.

The judgment is therefore affirmed.  