
    FLOWERS v. STATE.
    (Court of Criminal Appeals of Texas.
    May 15, 1912.)
    1.Criminal Law (§ 1097) — Appeal—Statement oe Facts — Eeeect of Absence.
    In the absence of a, statement of facts, the Court of Criminal Appeals cannot determine the effect of alleged newly discovered evidence.
    lEd. Note. — F’or other cases, see Criminal Law, Cent. Dig. §§ 2802, 2864, 2926, 2934, 2938, 2939, 2941, 2942, 2047; Dec. Dig. § 1007.]
    2. Witnesses (§ 49) — Competency—Ex-Convicts— Pardon.
    An ex-convict who was pardoned by the Governor for the purpose of testifying in the particular case, was a competent witness.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 11G-11S; Dec. Dig. § 49.]
    3. Criminal Law (§ 1000) — Appeal—Bill oe Exceptions.
    Accused’s motion for new trial on the ground that his attorneys were not sufficiently informed as to the testimony of his own witnesses, because of the late time at which they were appointed, preventing him from securing a fair trial, cannot be considered on appeal, where it was not verified by a bill of exceptions, or otherwise than by accused’s statement under oath.
    [Ed. Note. — For other cases, see Criminal I,aw, Cent. Dig. §§ 2653, 2789, 2803-2827, 2927, 2928, 2948, 3204; Dec. Dig. § luao.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Will Flowers was convicted of first degree murder, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Ain. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

This conviction was for murder in the first degree, with a life sentence. The record is before us without a statement of facts and bills of exception. There was a motion for new trial, made in the court below and overruled.

One of the grounds sets up newly discovered evidence, but without the statement of facts we are unable to say whether this is newly discovered evidence or not, and, if so, that it was of any significance, or in fact existed. The allegation rather precludes the idea, however, that there is merit in that ground of the motion. It states that there was a witness testified in the case named Wright, who was an ex-convict, and therefore he was incompetent, but further states in the motion that this was brought to light by the prosecuting attorney for the state by procuring a full pardon for the witness Wright, whose testimony was wanted in a companion case to this of Robison v. State; that Robison was charged as a principal in the murder with defendant for the killing of Otto Kalkhoff. If Wright in fact was an ex-convict, and had been pardoned by the Governor for the purpose of testifying in these cases, he was not an incompetent witness.

The other ground of the motion is to the effect that appellant had employed counsel to represent him, and the court summoned a special venire of 104 jurymen and set the case for December 4th. It is further alleged that, the court not having learned that the defendant was not represented by counsel until the morning of the trial, he immediately appointed Attorneys E. E. Hunt and O. D. Turner to represent appellant. Neither of said attorneys were sufficiently informed of the testimony of their own witnesses, and the time was not sufficient for the purpose of securing defendant a fair trial. This is alleged as a ground of the motion, but is not verified in any manner by bill of exceptions, or otherwise than by the statement of the defendant under oath. This is not sufficient, and, besides, it was made a ground of the motion for new trial, instead of demanding sufficient time, if it was needed, to prepare for trial at the time •of the announcement.

The judgment is affirmed.  