
    Albert Smith v. State.
    
      No. 29,840.
    June 11, 1958.
    Appellant’s Motion for Behearing Overruled.
    (Without Written Opinion) October 22, 1958.
    
      John P. Spiller, Houston, for appellant.
    
      Dan Walton, District Attorney, Thomas D. White and Morgan W. Redd, Assistants District Attorney, Houston, and Leon Douglas, State’s Attorney, Austin, for the state.
   WOODLEY, Judge.

The offense is murder; the punishment, sixty years.

The undisputed evidence shows that appellant took offense at some remarks the deceased made; left the scene upon order of police officers, returned some thirty minutes later, got out of an automobile and fired several shots at the deceased, some of which struck him and caused almost instant death.

Appellant filed application for suspended sentence and testified, his testimony raising the issue of self-defense. Both issues were submitted to the jury and were resolved against appellant.

The sole claim for reversal is the overruling of appellant’s motion for new trial based upon newly discovered evidence.

The verdict was returned and judgment rendered on December 4, 1957. The motion, the overruling of which is complained of, was filed December 16, 1957.

Art. 755 V.A.C.C.P. was not complied with wherein it requires that the motion for new trial be determined by the court within twenty days after its filing. Mahan v. State, 163 Texas Cr. Rep. 36, 288 S.W. 2d 508.

We need not rest our decision upon this. The state controverted the motion and evidence heard thereon was sufficient to sustain a finding by the trial court that the additional testimony was not truthful, would not be believed and would not change or alter the verdict.

The witness Williams, whose affidavit was relied upon as furnishing newly discovered evidence corroborative of appellant’s claim of self-defense, was present at the trial as a state’s witness; had testified before the grand jury and had made a written statement to the police in which he said that the deceased was unarmed and that appellant first shot him in the back.

We overrule the contention that the trial judge abused his discretion in overruling appellant’s motion for new trial.

The judgment is affirmed.  