
    GORDON v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1913.)
    Affidavits (§ 5*) — Authority to Take — Attorney.
    Affidavits on accused’s motion for new trial for newly discovered evidence cannot be considered, if they were sworn to before accused’s attorney.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 18-27; Dec. Dig. § 5.*]
    Appeal from District Court, Palo Pinto County; W. J. Oxford, Judge.
    Gertrude Gordon was convicted of assault with intent to murder, and appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of an assault with intent to kill and murder, and her penalty fixed at the lowest prescribed by law.

There are but two questions raised, and they were raised by appellant’s motion for a new trial. The first is: She complains that “the evidence is wholly insufficient to support the verdict of the jury and the judgment herein.” This is in no way pressed by the motion for new trial or otherwise. We have carefully read the evidence. It is unnecessary to state it. It clearly and amply sustains the verdict and judgment.

The second ground claimed is newly discovered testimony. This is attempted to be supported by the pretended affidavits of three persons. The state, on the hearing of the motion, proved that each of these affidavits was sworn to before appellant’s attorney. This would make the affidavits illegal, or rather, because thereof, they cannot be considered as affidavits at all. This has repeatedly been decided by this court. Maples v. State, 60 Tex. Cr. R. 171,131 S. W. 567; Patterson v. State, 63 Tex. Cr. R. 297, 140 S. W. 1128, and many other cases unnecessary to cite. Besides this, if the affidavits could be considered, they are wholly ladling in every particular under the statute (article 837, subd. 6, Code Cr. Proc. 1911), and the requisites thereof, shown by Judge White and his citation of authorities under said article in section 1149 of his Ann. Code Cr. Proc.

The judgment is affirmed.,

DAVIDSON, J., absent.  