
    HUGHES v. STATE.
    (No. 10766.)
    Court of Criminal Appeals of Texas.
    March 16, 1927.
    Rehearing Denied April 27, 1927.
    1. Criminal law 023(9) — Appeal in case less than capital may be taken only after sentence.
    Appeal may be taken in a case less than capital only on the entry of sentence.
    2. Criminal law <&wkey;!023(9) — Where no sentence is in record, court of criminal appeals has jurisdiction of liquor case only to dismiss appeal.
    Court of criminal appeals has no jurisdiction in a liquor case other than to dismiss an appeal where no sentence is found in the record.
    3. Criminal law &wkey;977(3) — Time for sentence is after motion for new trial is overruled, under statute (Code Cr. Proc. 1925, art. 768).
    Time for sentence is after motion for new trial is overruled, under Code Cr. Proc. 1925, art. 768, providing that, if new trial is not granted or judgment arrested, sentence shall be pronounced after expiration of time allowed for making the motion.
    4. Criminal law <&wkey;977(3) — Sentence entered in liquor case after recognizance is not void.
    Sentence in liquor case is not void because entered after defendant’s recognizance.
    5. Criminal law <&wkey;!083 — Not recognizance, but judgment and notice of appeal, give appellate court jurisdiction.
    Pinal judgment and notice of appeal, and not the recognizance, give jurisdiction to the appellate court.
    On Motion for Rehearing.
    6. Criminal law <&wkey;959 — To take issue on cause set forth in motion for new trial, written pleading is not required (Code Cr. Proc. 1925, art. 757).
    To take issue under Code Or. Proc. 1925, art. 757, providing that state may take issue upon any cause in motion for new trial, and judge shall hear evidence thereon, a written pleading is not required.
    7. Criminal law <&wkey;949(2) — Motion for new trial for newly discovered evidence must be verified (Code Cr. Proc. 1925, arts. 752-757).
    Where one of grounds for new trial - of criminal case is newly discovered evidence, the motion must be, verified, under Code Cr. Proc. 1925, arts. 752-757, requiring motion to be in writing, and providing that motion shall be governed by rules of civil suits.
    8. Criminal law <&wkey;l 176 — Conviction will not be reversed for failure of order refusing new trial to show evidence was heard controverting hearsay affidavit (Code Cr. Proc. 1925, art. 757).
    Court of criminal appeals will not reverse conviction in liquor case because order overruling motion for new trial did not show that evidence was heard, as required by Code Cr. Proc. 1925, art. 757, on issue whether jurors discussed defendant’s failure to testify, and stated he was of bad character, where averments of affidavit were wholly hearsay.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    Luther Hughes was convicted of unlawful transportation of intoxicating liquor, and he appeals.
    Affirmed.
    Umphres, Mood & Clayton, of Amarillo, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The unlawful transportation of intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for one year.

Appellant suggests that this court is without jurisdiction to determine the merits of the case. This view is based upon the.fact that the appellant entered into a recognizance before the sentence was entered. He reasons that the effect of the recognizance was to defeat the jurisdiction, of the trial court and thereby prevent the entering of the sentence, and that, in the absence of a sentence, this court is precluded by law from doing other than dismissing the appeal. The order overruling the motion for new trial bears the date of. September 11, 1926, and the sentence bears the date of September 13, 1926. We understand that an appeal may be taken in a case less than capital only on the entry of the final judgment, which, according to the uniform construction of the statute, is the sentence. See collation of authorities in Branch’s Ann. Tex. P. C. p. 338; also 3 Vernon’s Tex. C. C. P. 1925, p. 150, note 3; Ridge v. State, 96 Tex. Cr. R. 496, 258 S. W. 472; Carlile v. State, 97 Tex. Cr. R. 477, 262 S. W. 489; Williams v. State, 99 Tex. Cr. R. 356, 269 S. W. 434. If, in fact, there was no sentence found in the record, the court would have no jurisdiction other than to dismiss the appeal. See Stanford v. State, 99 Tex. Cr. R. 394, 269 S. W. 437. However, such is not the condition in the present record. There is a sentence duly entered after the verdict and judgment, which sentence contains all the legal requisites. Notice of appeal from the sentence appears properly entered. The sentence, however, contains the recital that the entry of the sentence was opposed because the accused had previously entered into a recognizance. The time for the sentence is after the motion for a new trial is overruled. See article 768, C. C. P. 1925. '

The position taken by the appellant that the sentence is void because entered after the recognizance is untenable. It is not the recognizance, but the final judgment and notice of appeal, which, give jurisdiction to the appellate court. The reasons for opposing a sentence are set out in article 773, O. O. P. 1925. These are the showing that the accused has received a pardon; that he is insane; that there has been no motion for new trial, or a motion in arrest of judgment ; and that he desires to make one, and has good grounds therefor; that he claims he is not the person convicted.

The state’s evidence is direct and positive to the effect that the appellant unlawfully transported whisky. The appellant’s evidence presented an issue of fact. The verdict of the jury settled the conflict in favor of the state. We have been favored with no brief. An examination of the charge of the court fails to reveal any error requiring a reversal. There are no bills of exceptions complaining of the introduction of the evidence or other rulings of the court.

The judgment is affirmed.

On Motion for Rehearing.

In paragraph 6 of his motion for new trial there is contained an averment that, during their deliberation, the jurors discussed the appellant’s failure to testify, and members of the jury stated that the appellant was of bad character. The motion for new trial is verified by the affidavit of the appellant, but not otherwise supported. In the order overruling the motion for new trial, there is no recital that evidence was heard. Appellant insists that, in that state of the record, on appeal, it is the duty of the appellate court to reverse the judgment. It is stated in article 757, C. C. R. 1925, that:

“The state may .take issue with the defendant upon the truth of any cause set forth in the motion for a new trial; and, in such case, the judge shall hear evidence, by affidavit or otherwise, and determine the issue.”

It has been held that to take issue under this statute a written pleading is not required. See Cade v. State, 96 Tex. Cr. R. 523, 258 S. W. 484.

The grounds upon which a motion for new trial may be granted are embraced in articles 752-757, O. O. P. 1925. It is declared that the grounds shall be distinctly set forth in writing, and, where one of the grounds is newly discovered evidence, the practice in civil cases, which requires the verification of the motion, must be followed. See Shaw v. State, 27 Tex. 755; Glasscock v. Commissioner, 3 Tex. 51; Koontz v. State, 41 Tex. 570; White v. State, 10 Tex. App. 172; Gray v. State, 65 Tex. Cr. R. 204, 144 S. W. 284. There is no specific statute requiring that in all instances averments of facts dehors the record, when set up in the motion for new trial, must be verified. As to the necessity for such a procedure, there seems to be a conflict of authority. See Hicks v. State, 75 Tex. Cr. R. 461, 171 S. W. 755 (both majority and minority opinions). It has also been said that a motion for new trial verified by the affidavit of the accused is but a pleading. See Lopez v. State, 84 Tex. Cr. R. 422, 208 S. W. 167; Noble v. State, 98 Tex. Cr. R. 463, 266 S. W. 412; Rumfield v. State, 98 Tex. Cr. R. 158, 265 S. W. 153. Upon this subject, however, the decisions are not harmonious. See Harris v. State, 17 Tex. App. 559; Stanley v. State, 16 Tex. App. 392.

It has been said that, where the record on appeal is void of evidence, that testimony other than that attached to the motion for new trial was heard, the presumption will be indulged that the court considered the affidavits which were made a part of the motion. See Cade v. State, 96 Tex. Cr. R. 523, 258 S. W. 484; Collins v. State, 95 Tex. Cr. R. 405, 254 S. W. 805; Washington v. State, 86 Tex. Cr. R. 652, 218 S. W. 1043; Brown v. State, 101 Tex. Cr. R. 63, 274 S. W. 588; Redford v. State, 98 Tex. Cr. R. 42, 262 S. W. 766.

It is believed that the rule in none of the precedents mentioned control in the present instance, for the reason that the appellant’s affidavit verifying the motion for new trial sets up no detailed fact with his knowledge. It simply states his conclusion that certain things transpired in the jury room while the jury was in retirement deliberating upon his case. It is plain that these are matters about which he could not have testified if an oral inquiry had been made touching the merits of his motion. On the face of the motion, the averments are but hearsay. We are of the opinion, therefore, that, in affirming the judgment upon the record before us, no violence was done to the rules of practice.

The motion for rehearing is overruled. 
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