
    GRIFFIN v. STATE.
    (No. 7697.)
    (Court of Criminal Appeals of Texas.
    May 2, 1923.
    Rehearing Denied Oct. 31, 1923.)
    1. Criminal law <&wkey;l 099 (5) — Statement of facts in support of motion for new trial, not filed within trial term-, will not be considered.
    Where a statement of facts heard in support of a motion for a new trial was not filed until after adjournment of the trial term, it will not be considered on appeal.
    2. Intoxicating liquors <&wkey;!32 — Dean Law not in conflict; with federal acts.
    The Dean Law (Vernon’s Ann. Pen. Code Supp. 1922, art. 588% et seq.) is not in conflict with federal acts on the same subject.
    3. Criminal law <&wkey;59’0 (I) — Refusal of postponement held not error.
    Refusal to postpone accused’s case on the ground that he had no opportunity to employ counsel held not error, where, after being placed under bond to await the action of the grand jury, accused was indicted, but not tried for some time.
    4. Witnesses <&wkey;357 — Questions whether witness would believe another witness held'improper.
    Examination of character witnesses as to whether they would believe another witness on the stand held improper; character witnesses being only permitted to testify that they do not believe the witness worthy of belief under oath.
    <&wkey;For other cases see same topic and KEY'-NUMBBR in ail Key-Numbered Digests and Indexes
    
      5. Witnesses <&wkey;357—Testimony of character witness held properly rejected.
    Testimony of a character witness as to the reputation of another witness held properly excluded, where such witness disclosed on further examination that his testimony was based on matters which would not, in law, give him the right to testify as to such reputation.
    On Motion for Rehearing.
    6. Criminal law &wkey;>l 159(3)— Jury’s finding on conflicting evidence binding on appellate court.
    Jury’s finding on conflicting evidence is binding on appellate court.
    7. Criminal law <&wkey;>949'(l)—Motion for new trial on ground of newly discovered' evidence held not to sufficiently comply with statute to require consideration.
    A motion for a new trial on the grounds of newly discovered evidence, which was not sworn &, and which did not allege that the evidence had been discovered since the trial, or excuse its nondiscovery, held not to sufficiently comply with Vernon’s Ann. Code Cr. Próc. 1916, art. 837, subd. 6, to require consideration. :
    8. Criminal law &wkey;>938(I)—Newly discovered evidence, which is merely impeaching in nature and cumulative, will not support motion.
    ‘ Newly discovered testimony, which is merely impeaching in nature and cumulative, will not ordinarily support a motion for new trial.
    9. Criminal law <&wkey;4 124(1)—Affidavit in support of motion for new trial not treated as the only evidence considered by court.
    Where the record discloses that there was evidence other than the affidavit attached to a motion for a new trial heard by the court before refusing the new trial, the affidavit cannot be treated as the only evidence heard.
    <§=^For other oases see same topic and KEV-N UMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Johnson County ; Irwin T. Ward, Judge.
    Kin Griffin was convicted of the unlawful sale of intoxicating liquor, and he appeals.
    Affirmed.
    B. Jay Jackson and O. T. Plummer, both ■ of Cleburne, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Johnson county of the unlawful sale of intoxicating liquor, and his punishment fixed at one year in the penitentiary.

Appellant sought a new trial, alleging some newly discovered testimony, and upon the hearing of the motion offered testimony in support of same. The statement of the facts heard in support of the motion for new trial was not filed until after the adjournment of the trial term. Since the rendition of the case of Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116, this court has uniformly declined to consider statements of facts offered in support of applications for new trial,. unless such statements be filed within the trial term.

Appellant attacks the Dean Law (Vernon’s Ann. Pen. Code Supp. 1922, art. 588(4 et seq.) as being in conflict with the federal acts. We have fully discussed and settled this in Ex parte Gilmore, 88 Tex. Cr. R. 529, 228 S. W. 199; Chandler v. State, 89 Tex. Cr. R. 308, 232 S. W. 336; Chandler v. State, 89 Tex. Cr. R. 306, 232 S. W. 317. The latter cases were carried before the Supreme Court of the United States, and the doctrines therein announced were upheld by the decision of said court.

By a bill of exceptions complaint'is made of the refusal of the trial court to postpone the case; the principal ground of complaint being that appellant had had no opportunity to employ counsel. It appears from the record that appellant was placed under bond to await the action of the grand jury and that when the indictment was returned against him the case was not tried for some time. There was no error in the refusal of the learned trial judge to grant the request to postpone. '

By his bill of exceptions No. 2 appellant complains that he asked a witness this question:

‘■How long has this negro been in jail at any one time since you have been deputy sheriff here?”

The bill of exceptions does not state what the answer of the witness would have been, had he been permitted to answer, and nothing in said bill enables us to know what negro was referred to in the question, and we are unable to appraise the object or purpose of the question, or determine the injury of the refusal.

Questions propounded to- witnesses as to whether they would believe that negro on the stand are manifestly improper. The farthest courts have gone is to hold that a witness may be permitted, after affirming his knowledge of the bad character of the witness in the community in which he lived, to then say that from his knowledge of this bad character he does not believe the witness worthy of belief under oath.

There was no error in the rejection of the testimony of witness Bratcher concerning the reputation of the principal state witness for truth and veracity. After making the statement that he knew it, and that it was bad, said witness disclosed upon further examination that his testimony was based upon matters which would not, in law, give him the right to testify to such reputation. This being disclosed to the court below, the learned trial judge correctly sustained the state’s motion to exclude the testimony from the jury. Bills of exceptions Nos. 6, 7, and 8 present no error.

Being unable to agree with any of the contentions of appellant, an affirmance, is ordered.

On Motion for Rehearing.

MORROW, P. J.

It is charged that appellant sold intoxicating liquor to Phil Phillips, who, in his testimony, affirmed that he bought it, though appellant denied the sale. The settlement by the jury of the conflict betwen them is binding upon this, court.

The motion for new trial does not comply with the rules necessary to require consideration of an averment charging that new and material evidence has been discovered. Article 837, subd. 6, Vernon’s Tex. Crim. Stat. vol. 2, pp. 777, 778. The motion is not sworn to. It also fails, to allege that any new evidence has been discovered since the trial, or to excuse its non-discovery. The only affidavit attached is that of the witness Bennett, to-the effect that he would give testimony against the good reputation for truth and veracity of the witness Phillips. This was impeaching in its nature and cumulative. Such testimony ordinarily would not support the averment in question. Vernon’s Tex. Crim. Stat. vol. 2, pp. 784, 785, notes 8, 9, and cases cited.

It affirmatively appears from the record that there was evidence other than the affidavit attached to the motion heard by the court before refusing the new trial. Under such circumstances, the affidavit attached to the motion cannot be treated as the only evidence heard. See Cade v. State (No. 7740) 257 S. W. -, recently decided, and cases therein cited. If so, considered, the affidavit is not sufficient for the reason stated above.

The failure to procure counsel being apparently due to the lack of diligence on the part of the appellant, he cannot avail himself of it after verdict. Vernon’s Tex. Crim. Stat. vol. 2, p. 305, note 9.

The motion to postpone shows no diligence to procure the alleged absent testimony.

The motion is overruled.  