
    EPPERSON v. STATE.
    (No. 4749.)
    (Court of Criminal Appeals of Texas.
    Dec. 12, 1917.)
    1. Criminal Law @^956(1) — Motion tor New Trial — Necessity of Affidavits or Proof.
    On motion for a new trial after a verdict on a plea of guilty on the ground that defendant was not represented by an attorney, and meant by his plea of guilty that he killed deceased, but not that the homicide was unlawful, where the proceedings as disclosed by the judgment followed the statute, the motion should have been verified by affidavit or proof, as the record could not he impeached by an unverified motion.
    2. Criminal Law <§=>1124(4) — Appeal—Matters Presented eor Review.
    A motion for a new trial after a verdict on a plea of guilty, on the ground that the evidence taken on the examining trial and attached to the motion showed that the killing was in self-defense, was not reviewable where the judgment overruling the motion recited that the court heard evidence, but the evidence heard was not brought up, especially where the identity of the evidence attached to the motion with that adduced on the examining trial was not verified by affidavits, and there was no bill of exceptions or statements of facts on the motion showing whether .such purported testimony was before the trial court.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Frank Epperson, alias Frank Eidwards, was convicted of manslaughter, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the Stata
   MORROW, J.

This appeal is from a sentence condemning appellant to two years’ confinement in the state penitentiary for the offense of manslaughter. The indictment was for murder. 'The state abandoned the charge of murder, and on a plea of guilty the jury rendered a verdict which is the basis for the judgment. The indictment is regular, and no errors in the conduct of the trial are complained of.

In a motion for new trial appellant, conceding that he entered a plea of guilty, complains that he was not represented by attorney, and that by entering the plea he meant that he had killed deceased, but did not mean that the homicide was unlawful. The motion for new trial is not verified. The proceedings, as disclosed by the judgment, followed the statute with reference to the entrance of a plea of guilty. The statement of facts shows the homicide and fails to show justification. The law would not permit impeachment of this record on consideration of a motion for new trial which was neither verified by affidavit or proof. Barber v. State, 35 Tex. Cr. R. 70, 31 S. W. 649; Robinson v. State, 58 Tex. Cr. R. 550, 126 S. W. 276; Pilgrim v. State, 59 Tex. Cr. R. 499. 129 S. W. 363; Johnson v. State, 65 Tex. Cr. R. 43,143 S. W. 626; Bryant v. State, 69 Tex. Cr. R. 457, 153 S. W. 1156; Vernon’s C. C. P. p. 805, and cases cited. The rule recognized in these authorities is that when in a motion for new trial the matter is not shown 'by the record as relied on, verification of its truth is essential.

It is claimed in the motion that appellant acted in self-defense, and that the homicide was therefore justifiable. This, if true, depends upon evidence not adduced upon the trial, and not even newly discovered. Attached to the motion is what purports to be evidence adduced upon the examining trial. The identity of this evidence is not verified by any affidavit attached to the motion for new trial. There is no bill of exceptions or statement of facts upon motion for new trial showing whether this purported testimony was before the trial court on the hearing or not, nor is it brought before us by any bill of exception or statement of facts or otherwise. There is no information as to whether appellant’s motion was controverted or evidence introduced in opposition to it or not. The judgment overruling the motion for new trial recites that the court heard the evidence, and on such hearing overruled the motion. To authorize this court to review the action it is necessary that the evidence heard be brought up as a basis for the review. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116; Reyes v. State, 196 S. W. 533, and cases cited; Guerra v. State, 189 S. W. 953.

We will add that the reading of the copy of the evidence on the examining trial attached to the motion discloses facts which would have raised the issue of self-defense, and if on a plea of not guilty appellant had been tried on the indictment for murder, and this evidence had been before the jury a charge on self-defense would have been required. This evidence, however, would not make, a case of self-defense as a matter of law.

The record disclosing no reversible error, the judgment of the district is affirmed. 
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