
    WARE v. STATE.
    (No. 6820.)
    (Court of Criminal Appeals of Texas.
    April 12, 1922.)
    Criminal law @=>938(1) — New trial refused, where evidence not shown to have been discovered since trial and ordinary diligence was not exercised.
    Where defendant was convicted of incest, an affidavit of his wife that on the night of the alleged offense she slept in the room with defendant and prosecutrix, and defendant committed no crime, was not sufficient to warrant granting a new trial because of newly discovered evidence; it not being shown that the evidence was discovered since trial and could not with ordinary diligence have been discovered sooner1.
    Appeal from District Court, Sabine County; V. H. Stark, Judge.
    W. H. Ware was convicted of incest, his motion for a new trial was refused, and he appeals.
    Affirmed.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appellant was convicted for incest with his stepdaughter, punishment being assessed at 10 years’ confinement in the penitentiary. It would serve no good purpose to set out the evidence. To our minds it is amply sufficient to support the verdict. The evidence corroborating that of the stepdaughter is sufficient to meet the requirement of the law.

In his motion for new trial appellant sets up newly discovered evidence, and attaches thereto the affidavit of his wife to the effect that on the night of the 24th day of August, 1921 (the date on which the offense is alleged to have occurred), she slept in the room with appellant and prosecutrix, and that she heard no rattling of bed springs in the room where they were sleeping, and heard no talk between them, and that; if appellant had gotten in bed with prosecutrix, she would and could have heard it, and that she is positive he did not do so. Nowhere in the motion for new trial does appellant allege that these facts were not known to him at the time of the trial, nor does he assert that for the first time be became aware of what his wife would testify to after his conviction. The evidence all through the record shows that his wife, himself, and prosecutrix had been occupying the room where the offense is alleged to have occurred, and there is no reason apparent to us why appellant should not have known what his wife’s testimony would have been, if he sought to use her as a witness. There is no pretense that she concealed from him or his attorney any fact known to her.

Where a party convicted seeks a new trial on the ground of newly discovered evidence, in addition to setting forth the facts in which the new testimony consists, accused must satisfy the court that the new, testimony has come to his knowledge since the trial, and that it was not owing to any want of diligence that it was riot discovered sooner; and a new trial will not be granted for alleged newly discovered evidence which could have been obtained at the trial by the use of ordinary diligence. See many cases collated under section 198, p. 126, Branch’s Anno. P. ,C. Appellant has not even approached the fulfillment of the requirements relative to newly discovered- evidence to authorize a new trial.

The judgment of the trial court is affirmed., 
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