
    SAVALLA v. STATE.
    (No. 4448.)
    (Court of Criminal Appeals of Texas.
    April 25, 1917.)
    1. Criminal Law &wkey;391S(10, 11) — New Trial —Grounds—Terrorized Witnesses.
    In a criminal case where facts are known, or might have been known if counsel had been diligent, and witnesses were terrorized, or thought to be terrorized, it was the duty of counsel or defendant to call such fact to the attention of the court, so that it might use all necessary authority to secure a fair trial instead of relying thereon as ground for new trial.
    2. Affidavits <&wkey;5 — Sufficiency—Affidavit Sworn before Attorney of Party.
    ■ Affidavits in support of a motion for new trial in a criminal case, sworn to before defendant’s attorney, cannot be considered.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 18-27.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Augustine Savalla was convicted of assault to murder and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of assault to murder, his punishment being assessed at two years’ confinement in the penitentiary.

The statement of facts is not set up in the record. Appellant, in connection with his motion for new trial, filed affidavits alleging, not exactly newly discovered evidence, but a sort of equitable showing why certain facts were not produced before the jury. He seemed to hav^ been aware, ' or could by slight diligence 'have been aware, of the existence of these facts, and in fact the attorney who represented him swore to the statement that he was aware of their evidence at the time of the trial, and even before it. The state controverted the motion for new trial, filing the affidavit of the party whom appellant contends terrorized.' the witnesses. These witnesses could have been produced easily at the trial, and before the jury, and if their testimony was such as they say they would give upon another trial and had the court’s attention been called to it, doubtless he would have used the authority confided in him to require the truth to be stated, if it was the truth. Where facts are known, and the witnesses are terrorized, if such is the condition, or thought to be the condition, it is the duty of counsel or parties litigant to call this to the attention of the court so the court may use all necessary authority so that a-fair trial may he had. The officer against whom these charges were made denies it under oath, and the matter seems to have stopped there. There was no evidence offered so far as the record is concerned, and the court evidently 'decided the question upon the affidavits attached to the motion for new trial and the controverting affidavit. This is mentioned to show that there is no merit in the contention, even if those matters were considered.

As presented, however, the affidavits cannot be considered because all of them were sworn to before the attorney for the defendant, except that made by the defendant’s attorney. Affidavits thus made, under the authorities, cannot be considered.

There being no reversible error in the record, the judgment is affirmed.  