
    JOHNSON v. STATE.
    (No. 11427.)
    Court of Criminal Appeals of Texas.
    March 7, 1928.
    Rehearing Denied May 2, 1928.
    1. Criminal law <§¡=>939(3) — Denying new trial for new evidence proper, where defendant had • talked with witness on night of alleged offense.
    Overruling motion for new trial on the ground of newly discovered evidence held not an abuse of discretion after defendant’s conviction for selling intoxicating liquor, where on the night of the liquor sale, and after time thereof, defendant had talked with the witnesses whose testimony he claimed was newly discovered, since such fact showed insufficient diligence in seeking evidence.
    2. Criminal law <§¡=>939(1) — 'To procure new trial for new evidence, that evidence could not have been procured by diligence must be shown.
    In defendant’s motion, after conviction for selling intoxicating liquor, for a new trial on the ground of newly discovered evidence, defendant held required to allege and prove that the newly discovered testimony could not have been procured by the exercise of diligence.
    3. Criminal lav/ <§=>938(1), 1156(3) — New trial for new evidence is discretionary, and reviewing court will not, in absence of abuse, disturb exercise of discretion.
    A motion for a new trial based on newly discovered evidence is addressed to the discretion of the trial court, whose action thereon will not be disturbed in the absence of an abuse of discretion.
    Commissioners’ Decision.
    Appeal from District Court, Fannin County ; George P. Blackburn, Judge.
    John Johnson was convicted of selling intoxicating liquor, and he appeals.
    Affirmed.
    Cunningham & Dipscomb, of Bonham, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is selling intoxicating liquor; the punishment confinement in the penitentiary for two years.

The state’s witness, Esther Haddock, testified that he went to appellant’s house and bought a half gallon of whisky from him. On cross-examination the witness stated that the transaction occurred at 8 o’clock on Saturday night. Everett Bennett, a witness for appellant, testified that he was with Haddock in the vicinity of appellant’s home on the occasion in question, which was about 9 o’clock on Saturday night, April 2d. It appears that Haddock was driving an automobile at the time of the transaction and that it had been raining and was somewhat muddy; that the witness drove up a lane to appellant’s house, and that those who were with him remained about a quarter of a mile away during the time he was negotiating with appellant for the whisky.

Appellant denied that he had any transaction with Haddock involving the sale of intoxicating liquors, and supported his statement by the testimony of his wife to the effect that he (appellant) did not use whisky and that no whisky was kept on their place. He further showed that the state’s witness had stated to his (appellant’s) attorney in his presence and the presence of others that he could not identify appellant as the person who sold him the whisky.

Appellant predicated his motion for a new trial in part on. the ground of newly discovered evidence. Attached to the motion were the affidavits of four witnesses, which were, in substance, to the effect that on the occasion Haddock claimed he purchased the whisky from appellant there was a mudhole about 300 yards from appellant’s house which could not be crossed in an automobile. The affidavits of two of the witnesses were further to the effect that on Saturday night, April 2d, at about 8 o’clock, they saw the state’s witness Esther Haddock coming from the house of appellant with a team of mules; that he came on down the road to a point where his (Haddock’s) car was stuck in the mud; that said car was about 300 yards from and ’ headed in the direction of appellant’s house, but had not been nearer to the house than the mudhole; that they helped Haddock get his car out of the mud; that Haddock stated to them that he did not have any whisky with him and had not gotten any whisky from appellant; that the witnesses saw appellant going in the direction of his home; that appellant did not come near or talk to Haddock, but that they talked for a few moments with appellant; that appellant was walking and came across his field; that the only way to get to appellant’s house was through the mudhole, and that it was impossible to get a car through the mudhole without using a team; that the witnesses did not state to appellant what they knew about the matter until after his trial.

We note that neither appellant nor his wife testified concerning the mudliole. Such, fact, considered in connection with, the further fact that appellant talked to two of the witnesses on the night of April 2d, while they were near the mudhole, is destructive of the idea that appellant exercised diligence in securing the absent testimony. Appellant neither alleged nor proved that the newly discovered testimony could not have been procured by the exercise of diligence. This was necessary. Behrens v. State, 99 Tex. Cr. R. 56, 268 S. W. 172. A motion for a new trial based on newly discovered evidence is addressed to the discretion of the trial court, whose action thereon will not be disturbed in the absence of an abuse of discretion. Runnels v. State (Tex. Cr. App.) 276 S. W. 289. There being no sufficient showing of diligence, the trial court did not err in overruling the motion.

The judgment is 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.

MORROW, P. J.

An examination of the appellant’s motion for rehearing leaves this court of the opinion that on the original hearing the proper disposition of the appeal was made.

The motion is overruled. 
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