
    DUKES v. STATE.
    (No. 3152.)
    (Court of Criminal Appeals of Texas.
    June 3, 1914.
    Rehearing Denied June 26, 1914.)
    1. Criminal Law (§ 596) — Continuance-Absence of Witnesses.
    A continuance on the ground of the absence of a witness who will merely impeach a state’s witness is properly denied.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§' 1328-1330; Dec. Dig. § 596.]
    2. Criminal Law (§ 942) — New Trial — Newly Discovered Evidence.
    A new trial on the ground of newly discovered evidence which will merely impeach a state’s witness is properly denied.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2316, 2331, 2332; Dec. Dig. § 942.]
    
      3. CRIMINAL Law (§ 1099) — Statement of Facts — Time of Filing.
    Statement of facts must be filed during term time, or the same cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    4. Criminal Law (§ 1144) — New Trial — Rulin g — Review .
    Where the statement of facts, showing the testimony heard on motion for new trial on the ground of newly discovered evidence, was not filed in time, the court on appeal must presume that the trial court was justified in denying a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2764, 2766-2771, 2774-27S1, 2901, 3016-3037; Dec. Dig. § 1144.] •
    Appeal from District Court, Rusk County; W. C. Buford, Judge.
    Frank Dukes was convicted of manslaughter, and he appeals.
    Affirmed.
    Beard & Davidson, of Marshall, and Futch & Tipps, of Henderson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      Eor other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

Under an indictment for murder, appellant was convicted of manslaughter, and assessed the lowest punishment. We have carefully read and studied the statement of facts. The great preponderance of the evidence clearly shows appellant’s guilt — in fact, would have justified a higher offense and a greater punishment. Doubtless the skillful management of his able attorneys succeeded in preventing this.

Appellant made no motion for a continuance. In his motion for new trial he claimed that he was promised the attendance of a negro woman as a witness and that she would have impeached one of the state’s material witnesses. The record shows that by any ordinary diligence she could have been procured and testified on the trial. It has so ihany times been held that, even where diligence has been used, the court commits no error in refusing a motion for continuance because of the absence of a witness whose testimony would merely impeach another witness, and that such evidence cannot be ground for a new trial as newly discovered eviden.ee, that it is unnecessary to cite or collate the cases.

The only other ground for a new trial is that after the trial appellant discovered new evidence. He swore to his motion on that ground. He did not attach Jhe affidavit of any one, nor of any of the claimed witnesses by whom he expected to prove newly discovered evidence in support of his motion. However, the court, in considering his motion for new trial on this ground, heard a large number of witnesses, and heard all those, it seems, whom he presented by whom he would show newly discovered evidence, and after hearing all this the court overruled the motion.

There is in the record what purports to be a statement of the facts showing all the testimony the court heard in considering appellant’s motion for new trial. It has been so uniformly held by this court, and so well established, that such statement of facts, however preserved, must be filed during term time in order to be considered by this court, that we deem it unnecessary to collate the authorities; but see Hoskins v. State (Civ. App.) 163 S. W. 427, for some of the cases. The term of court at which this case was tried adjourned February 7, 1914. This purported statement of facts of the evidence heard on the motion for new trial was not approved nor filed in the lower court until May 1, 1914, nearly 90 days after adjournment, so that said statement cannot be considered by this court, and we must presume that the court was clearly justified in refusing a new trial on the ground claimed. As a matter of fact, without observing that said purported statement of facts was not filed in time, we read it, and, even if we could consider it, clearly it justified the court in refusing a new trial on the claimed ground.

There is no question but under the authorities appellant’s motion for a new trial on the ground of newly. discovered evidence in no way meets the requisites established by law. For other authorities, see section 1149, White’s Ann. C. C. P., and Gray v. State (Cr. App.) 144 S. W. 284. Any number of cases could be cited showing the court committed no error in refusing a new trial in this ease.

The judgment is affirmed.  