
    McCONNELL v. STATE.
    (No. 4843.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.)
    1. Criminal Law <£=1092(6) — Appeai>-Bill of Exceptions — Filins after Expiration of Term.
    Where tho court’s bill of exceptions preserving certain testimony in lieu of defendant’s bill was filed after the term expired, it cannot be considered.
    2. Criminal Law <£=956(1) — Motion for New. Trial — Trial on Affidavits — Statutes.
    Under Code Cr. Proc. 1911, arts. 840, 841, the court was privileged to try motion for new trial on affidavits, declining to receive oral testimony.
    3. Criminal Law <£=1134(2) — Appeai>-Re-view — Motion for New Trial — Evidence.
    Where the court tried motion for new trial •on affidavits, declining to receive oral testimony, the only evidence which the Court- of Criminal Appeals is authorized to consider on the motion is the affidavits and certified copies of records attached to the motion and filed during term.
    4. Criminal Law <@=>942(2) — Motion for New Trial.
    The trial court should have granted the motion for now trial of defendant charged with robbery, supported by affidavits showing that the prosecuting witness had made an affidavit retracting his inculpatory testimony, and that such witness, whose testimony was essential, had been convicted of forgery in a distant county, which conviction was unknown to defendant or his counsel until the trial was practically ended.
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Walter McConnell was convicted of robbery, and be appeals.
    Judgment reversed, and cause remanded.
    McCutcbeon & Church, of Dallas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was convicted of the robbery of Bert Curtis, who testified that appellant took money from his person while they were engaged in a tussle or fight.

The court refused to allow two of appellant’s bills of exception, and he undertook to supply them by bystanders’ bills which were filed after the time allowed by the court had expired. The motion for a new trial was supported by affidavits, and the record indicates that these were controverted in part by the state. The court prepared a bill preserving this testimony in lieu of appellant’s bill, but the bill prepared by the court was filed after the term expired, and cannot be considered. Black v. State, 41 Tex. Cr. R. 185, 53 5. W. 116. Without passing upon the controversy in regard to who was at fault with reference to the failure to file the bills of exception within the time required by law, we will say that the court tried the motion for a new trial on affidavits, declining to receive oral testimony. This he was privileged to do under articles 840 and 841, C. C. P.

The only evidence upon, which we are authorized to consider the motion for a new trial is the affidavits and certified copies of records that are attached to it and filed during the term. It appears from these that the prosecuting witness Curtis had made an affidavit retracting the inculpatory testimony that he gave at the trial against appellant; and that the said prosecuting witness, Curtis, whose testimony was essential to the state, had been, in the year 1915, convicted of forgery. This conviction took place in a distant county, and was unknown to appellant or his counsel until the trial was practically ended. The motion for a new trial thus supported, we think, should have been granted. Mann v. State, 44 Tex. 642; Brown v. State, 13 Tex. App. 59; Vernon’s C. C. P. p. 783, note 7, and cases cited.

The judgment of the lower court is reversed, and the cause remanded. 
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