
    YOUNG v. STATE.
    (No. 11326.)
    Court of Criminal Appeals of Texas.
    Jan. 18, 1928.
    Criminal law <s=>938(4) — Affidavit of witness as to what he would have testified had he been cross-examined held not to warrant new trial.
    Where defendant, in prosecution for possessing liquor for sale, did not cross-examine witness, though informed by court of right to do so, affidavit by such witness as to what he would have testified had he been so cross-examined held to present no newly discovered testimony authorizing new trial.
    Appeal from District Court, Falls County; E. M. Dodson, Judge.
    Bessie Young was convicted of possessing intoxicating liquor for purposes of sale, and she appeals.
    Affirmed.
    Tom Bartlett, of Marlin, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for possess-

ing intoxicating liquor for purposes of sale; punishment, one year in the penitentiary.

There appears as a part of this record a statement of facts which does not seem to ever have been approved by the trial court or filed in the office of the clerk of the court in which the case was tried. The record contains one bill of exceptions, which complains of the refusal of a new trial sought ' on account of newly discovered testimony of Dr. M. A. Davison. Dr. Davison was a witness on the trial of this case, and, as shown by the qualification of the bill of exceptions referred to, appellant did not cross-examine him, though informed by the court of her right so to do. Having failed to ask the witness any questions when the case was on trial, we are impelled to believe that an affidavit made .by him as to what he would have testified had he been so cross-examined presents no newly discovered testimony.

No error appearing, the judgment will be affirmed.  