
    NEWMAN v. STATE.
    (No. 4143.)
    (Court of Criminal Appeals of Texas.
    June 23, 1916.
    Rehearing Denied Oct. 4, 1916.)
    Í. Criminal Law <&wkey;112S(2) — Appeai>-Ke-view.
    Where no excuse is given in the motion for new trial on the ground of newly discovered evidence for not exercising proper diligence, but, in the oral argument before the Court of Criminal Appeals, defendant’s counsel states grounds as an excuse for not exercising diligence prior to trial, the court must consider the record as made in the trial court.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2953; Dec. Dig. &wkey;1128(2).] 2. Criminal Law <&wkey;939(l) — New Trial — Diligence in Procuring Evidence.
    New trial will not be granted for newly discovered evidence where no sufficient diligence in attempting to procure the evidence for trial is shown, nor any excuse given for failure to exercise diligence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig, §§ 2318, 2321-2323; Deci Dig. &wkey;939(l).]
    Appeal from District Court, Galveston County; Clay S. Briggs, Judge.
    Pearl Newman was convicted of murder, and she appeals.
    Judgment affirmed.
    J. Yance Lewis, of Houston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and her punishment assessed at five years’ confinement in the penitentiary.

No bills were reserved to the introduction of any testimony, and no exceptions were reserved to the charge as given, and no special charges were requested. Appellant’s entire contention is based on alleged newly discovered testimony. In the first place, the motion for new trial setting up newly discovered testimony is sworn to by no person, but if we consider the ground, appellant is wholly lacking in diligence, and no excuse is given in the motion for not exercising proper diligence. In the oral argument before this court appellant’s counsel would state some grounds as an excuse for not exercising diligence prior to the trial, but we must consider the record as made in the trial court, for that is what the trial .court had before it when he overruled the motion. Again, the alleged newly discovered testimony would not tend to support the testimony of appellant on the trial, but would make an entirely different state of facts to that testified to by appellant. In fact there would be an almost direct conflict in her testimony and the alleged newly discovered testimony. As no sufficient diligence is shown, nor excuse given, there was no error in overruling the motion.

The judgment is affirmed.  