
    SPIKES v. STATE.
    (No. 3454.)
    (Court of Criminal Appeals of Texas.
    March 3, 1915.)
    1. Criminal Law <g=>617 — Time of Trial.
    Where counsel for defendant announced ready for trial and made no request for additional time or any representation that he had not had time to prepare for the trial, such suggestion came too late after verdict, where it was not contended that appellant or his counsel was in any way surprised by the state’s testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1375; Dec. Dig. <§=>617.]
    2. Criminal Law <§=>958 — New Trial — . Grounds — Newly Discovered Evidence.
    Where alleged newly discovered testimony was known to defendant before the trial, and where the affidavit of the witness that she would give such testimony was not attached to the motion, or any reason given why it was not so attached, no sufficient reason for the granting of a new trial appeared.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2396-2403; Dec. Dig. <§=> 958.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Sam Spikes was convicted of theft from the person, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of the offense’ of theft from the person, and his punishment assessed at two years’ confinement in the penitentiary.

The statement of' facts accompanying this record is prepared in violation of law, being in question and answer form. This is not permissible under the statute. However, the two questions presented in the motion for a new trial could be considered, if properly presented. The first is that appellant employed an attorney and relied on him to defend him, but on the day of the trial the attorney declined to do so, and the court then appointed an attorney to represent appellant. In the motion for a new trial it is contended that this attorney should have been given more time to prepare appellant’s defense. If counsel was not granted sufficient time, he should have moved to postpone the case before trial. As he announced ready for trial, without any request being made for additional time, or any representation to the court that he had not had ample time to prepare for the trial, such suggestion comes too late after verdict, as it is not contended that appellant, or his counsel, was in any way surprised by the testimony offered in behalf of the state.

In his amended motion for a new trial he alleges newly discovered testimony. The testimony that is alleged to be newly discovered was known as well to the defendant before the trial as after verdict. It is alleged that the party named delivered to him a certain amount of money on the day of the alleged theft. The affidavit of the witness that she would so testify is not attached to the motion, and no reason given why the affidavit is not attached. Under such circumstances, this ground of the motion presents no sufficient reason for the granting of a new trial. Cotton v. State, 4 Tex. 260; West v. State, 2 Tex. App. 209; Dove v. State, 3 Tex. App. 501.

The judgment is affirmed. 
      <^=For other eases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes
     