
    E. E. Gainer v. The State.
    No. 2809.
    Decided June 8, 1904.
    Practice—Epileptic Fit—Affidavit.
    Where, upon motion for new trial with affidavits attached, the trial court decided the question as to whether defendant was unconscious during his trial from the effects of an epileptic fit, against him, the question was one in the discretion of the trial court.
    Appeal from the District Court of McLennan. Tried below before Hon. Sam. R. Scott.
    Appeal from a conviction of burglary; penalty, five years imprisonment in the penitentiary.
    The opinion states the case.
    
      W. B. Carrington, for appellant.
    Appellant’s contention is that he-was deprived of the right of being heard by himself or counsel on the trial for burglary, that he was tried practically without being confronted with witnesses before him, and that he was deprived of his liberty without due process of law, by reason of the fact that during the trial he was in an unconscious or comatose condition as a result of an epileptic fit, and so far as appellant was concerned, it was just as if he had been tried - in his absence, without being heard by himself or being tried according to the law of the land. Const, of Texas, art. 1 secs. 10, 19; Code Crim. Proc., arts. 3, 4.
    
      Howard Martin, Assistant Attorney-General, for the State.
   BROOKS, Judge.

This is a conviction for burglary, the punishment assessed being five years confinement in the penitentiary.

The record does not contain any bill of exceptions. In motion for new trial appellant alleges that at the time of and during his trial he was in an unconscious condition as the result of an epileptic fit. To support this contention he files several affidavits. The State controverted this ground of the motion, filed affidavits and introduced evidence, showing that appellant was feigning sickness or unconsciousness. After hearing the evidence pro and con on the question, the court decided the controversy against" appellant. We can not say that he abused his discretion, but, in our opinion, the action of the court was correct.

Ho error is manifest by the record, and the judgment is affirmed.

Affirmed.  