
    SANDOVAL v. STATE.
    No. 21596.
    Court of Criminal Appeals of Texas.
    May 21, 1941.
    P. C. Ibarra, of San Antonio, for appellant.
    Spurgeon E. Bell, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was given five years in the penitentiary on a charge of robbery. He filed a motion for a new trial and to his amended motion he attached affidavit of two witnesses, setting up matter pertinent to his defense. Each witness testified that they did not know that he was tried and convicted until they were approached by parties afterward, evidently persons interested in appellant’s case. It appears that if such persons had approached these witnesses prior to the trial they would have secured their attendance and the very valuable information which their evidence appears to give. These witnesses were parties present at the bar room where the robbery was alleged to have taken place, and a normal investigation would have led to them.

From all the circumstances it appears that no diligence was used to obtain the testimony of these witnesses in behalf of the accused at the trial. Under the well settled rules the plea for a new trial on the grounds of newly discovered evidence must be overruled.

The evidence in the case was controverted and it was the province of the jury to pass on it, which they did adversely to appellant. It was evidence which, if believed, amply sustained the verdict which they returned. Other matters appearing in the record are irregular, but there are no bills of exception and they are matters which the appellant could, and apparently did, waive.

The judgment of the trial court is affirmed.  