
    SIEBE v. STATE.
    (No. 6692.)
    (Court of Criminal Appeals of Texas.
    Nov. 15, 1922.)
    1. Adultery <&wkey;l I — Testimony that accused paid attorney fees in divorce suit of his paramour held admissible.
    In a prosecution for adultery with a married woman, who had since sued for divorce, testimony by the judge who presided at her divorce trial to the effect that accused paid part of her attorney fees in that case hold admissible.
    2. Criminal law <&wkey;>I 144(10) — Language of prosecuting attorney regarding failure of juries to convict not presumed reversible error.
    The language “no wonder why men and organizations take the law into their own hands, because juries fail to convict in this county,” used during argument of prosecuting attorney, will not b.e presumed reversible error, in the absence of any showing in the bill as to the connection in which it was used, and especially in the absence of any request that the jury be instructed to disregard it.
    3. Criminal law <&wkey;665(4)—Admitting testimony of witness after witnesses had been placed under rule held not abuse of discretion.
    It is not error or abuse of discretion to permit witness to testify, after witnesses have been placed under the rule, where it appeared that she had only been in the courtroom about five minutes, and heard none of the testimony before being called to the stand.
    4. Affidavits <&=»5—Motion for new trial and affidavits verified before appellant’s attorney cannot be heard.
    Where motion for new trial on grounds of newly discovered evidence and affidavits attached thereto are sworn to before appellant’s attorney, they cannot be considered.
    Appeal from Harris County Court at Law; Roy E. Campbell, Judge.
    Louis Siebe was convicted of adultery, and he appeals.
    Affirmed.
    Jack Giulia, of Houston, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for adultery, punishment being a fine of $500. We do not detail the evidence. It was conflicting and presented an issue purely for the jury. They evidently accepted the testimony of the state’s witnesses as reflecting the truth of the matter, and this evidence, being sufficient to support the judgment, we would not feel authorized to set it aside.

The charge against appellant was for adultery with Mrs. Godke. She had sued for divorce, which was tried before Judge Ewing Boyd. Upon trial of the instant case Judge Boyd was permitted to testify, over objection, that appellant admitted upon the trial of the divorce case that he had paid part of her attorney’s fee in that case. This testimony was admissible.

During argument of the prosecuting attorney he used the following language, which was objected to:

“No wonder why men and organizations take the laws into their own hands, because juries fail to convict in this county.”

The hill only sets out the language complained of. It does not show in what connection it was used. It might or might not present a matter which we would regard as calling for reversal; but, in the absence of more information than we have from the bill before us, we cannot presume such to' be true, especially in the absence of a request that the jury be instructed to disregard the language.

We find no abuse of discretion in the trial court permitting Mrs. Burley to testify after the witnesses had been placed under the rule. It appears from the bill that she had only been in the courtroom about five minutes when cálled to the witness stand, and said she had heard none of the evidence.

Appellant’s motion for new trial, among other grounds, sets up newly discovered evidence. The motion itself, and the affidavit attached thereto, are sworn to before appellant’s attorney, and therefore cannot be considered. See authorities collated under article 840, Vernon’s O. O. P. note 10, also-Steele v. State, 87 Tex. Cr. R. 588, 223 S. W. 473; Kellum v. State (Tex. Cr. App.) 240 S. W. 1109.

Finding no errors for which the case should be reversed, the judgment is affirmed. 
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