
    SMITH v. STATE.
    (No. 3522.)
    (Court of Criminal Appeals of Texas.
    April 21, 1915.)
    Criminal Law <&wkey;938 — New Trial — Grounds —Newly Discovered Evidence.
    The testimony of a witness that accused was with her the night a burglary was committed was not such newly discovered testimony as entitled accused to a new trial, as accused was as well aware of this fact, if true, as the witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2806-2315, 2317; Dec. Dig. ©=938.]
    Appeal from Criminal District Court, Harris County; C. W. Robinstín, Judge.
    Lloyd Smith and others were convicted of burglary, and the defendant named appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the 'State.
   HARPER, J.

Appellant, Ed Shearer, and Earl Williams were jointly indicted, charged with burglary. They were jointly tried, all convicted, and each given eight years in the penitentiary, from which judgment appellant, Lloyd Smith, alone prosecutes an appeal.

The record is before us without any statement of facts or any bill of exception; consequently the only question we can review is whether or not the court erred in refusing a new trial on account of alleged newly discovered testimony. Attached to the motion for a new trial are the affidavits of Nellie Snell and Gertrude Heard. Nellie Snell’s affidavit presents no facts of which appellant- must not have been aware as well before as subsequent to the trial, while the affidavit of Gertrude Heard states “that appellant and I remained in his room the balance of the night” after 9 o’clock. If that is true, appellant was as well aware of that fact as was the woman, and in no sense could it be said to be newly discovered testimony.

The judgment is affirmed. 
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