
    GREEN v. STATE.
    (No. 11140.)
    Court of Criminal Appeals of Texas.
    Nov. 30, 1927.
    1. Criminal law <&wkey;i 170(4) — Refusal to permit alibi question held not reversible where bill of exceptions showed question was subsequently permitted.
    The complaint in a bill of exceptions of the court’s refusal to permit an alibi question held not ground for reversal of conviction, where bill itself showed that the court had subsequently permitted the question to be asked.
    2. Witnesses <©=330(1) — Where alibi witness testified he had gone to another city for liquor and saw defendant, cross-examining as to whether he did not know he could get liquor in own city held proper.
    Where an alibi witness testified in a robbery prosecution that he had gone to another city for liquor and saw the defendant in such city at the time, permitting cross-examination of such witness as to whether he did not know he could get liquor in his own city held proper as tending to lessen the probability of his going to such other city for it and thus attack credibility of the story.
    3. -Criminal law &wkey;»l09l (3) — Bill of exceptions containing only objections to questions without facts as to truth of objections held insufficient.
    Bill of exceptions in an appeal from robbery conviction, which contained only the objections to the questions asked without showing any facts from which the court could infer that the matters set up in objection were in fact true, held insufficient.
    4. Criminal law &wkey;»l09l (3) — Bill of exceptions complaining that matters offered for impeachment purposes did not meet predicate laid therefor, but not stating predicate, held insufficient.
    A bill of exceptions, in an appeal from robbery conviction, complaining that matters offered for impeachment purposes did not meet the predicate laid therefor without stating what the predicate was or whether the offered impeachment corresponded with such predicate, held insufficient.
    5. Robbery <&wkey;!5 — Where defendant used pistol during robbery, lack of evidence of his manipulating cash register held immaterial.
    Where, in prosecution for robbery of a drug store with firearms, no evidence was introduced as to defendant’s manipulating cash register and taking money, but there was evidence that he handled the gun while others did so, held, upon appeal, that lack of evidence of his manipulating cash register was immaterial.
    6. Affidavits @m>5 — Affidavit of newly discovered evidence taken before defendant’s attorney could not be considered even if no notary lived in town.
    Where, upon motion for a new trial for newly discovered evidence, it was shown that the affidavit of the discovery of such evidence was made before the defendant’s own attorney, held that such affidavit was. insufficient 'and could not be considered, even if, as contended by appellant, there was no notary public in the town in which he lived before whom such affidavit could have been taken.
    7. Criminal law <&wkey;939(l) — Evidence discoverable by slightest diligence held not sufficient to warrant new trial for newly discovered evidence.
    Evidence discoverable by the slightest diligence on the part of an appellant cannot be used as the basis for a motion for new trial upon the ground of newly discovered evidence.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    Austin Green was convicted of robbery with firearms, and he appeals.
    Affirmed.
    H. P. Shead, of Fort Worth, for appellant.
    Jesse B. Martin, Cr. Dist. Atty., and Arthur Lee Moore, Asst. Or. Dist. Atty., both of Fort Worth, and A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction of robbery with firearms; punishment, 15 years in the penitentiary.

On the night of December 21, 1926, according to the testimony of four or five witnesses who positively identified him, appellant with a pistol held up a number of parties in a drug store in the city of Fort Worth, among others R. H. Lewis, manager of said drug store, and took from the cash register $52 and some cents. Appellant was accompanied by a confederate, who got the money while appellant held the pistol on the parties.

The first complaint of procedure is to the refusal of the court to permit a defense witness to an alibi to answer the question as to whether it was his best judgment that the man, whom he saw at Farmers’ Branch on the night of the alleged robbery was appellant. The bill of exceptions presenting this complaint is qualified with the statement that later the witness was permitted to answer said question. The statement of facts shows this to be true.

Complaint is made of the fact that another alibi witness of appellant; who undertook to loóate the latter in Dallas on the night of the alleged robbery, was required to answer the state’s question as to whether or not he knew he could get liquor in Fort Worth at the time. The cross-examination was proper. The witness stated that he lived- in Forth Worth and that he went to Dallas on the occasion of his seeing appellant there to get whisky for Christmas. Certainly, if the witness could get it in Fort Worth at the same time it would lessen the probability of his going to Dallas for the purpose of getting it.

Bill of exceptions No. 3 sets out only the objections made to certain questions asked appellant. There is not a particle of showing in the bill of exceptions of any facts from which we might infer that the matters set up as objections were in fact true. Such a bill is insufficient.

The next bill of exceptions is also qualified by the court so as to show that an objection which the bill attempts to set up as having been overruled was in fact sustained, and the alleged objectionable answer was not in fact given. Another bill .complains that certain matters offered by the state for impeachment purposes did not meet the predicate laid therefor. This is the extent to which the bill presents the alleged erroneous matter. We do not know therefrom what the predicate was", nor whether the offered impeachment corresponded with such predicate.

We see no importance to be attached to the question of the condition of the cash register after the alleged robbery, the contention being that there was no testimony showing that appellant had any connection with pushing the key of said cash register. If in-truth the witnesses properly identified appellant as being the man who had used the pistol on the occasion in question, it would be wholly immaterial whether he or his confederate operated the cash register and obtained the money.

There is complaint of the overruling of appellant’s motion for new trial based on affidavits alleging newly discovered testimony. The affidavit of M. E. McDonald was taken before appellant’s attorney. Authorities are numerous holding that an affidavit in this condition will not be considered. Citation of authorities would but incumber the opinion. Appellant’s attorney makes an affidavit which appears in the record, stating that there was no notary public in the little town of Farmers’ Branch, and that for this reason he took the affidavit of McDonald. We are unable to agree that this excuses the violation of the oft-repeated rule laid down in such matters. Farmers’ Branch is a village or small town in Dallas county not far from the city of Dallas and from other towns in which unquestionably there are notaries public. We see no reason why the rule should not be adhered to. Appellant attaches to his motion for new trial also the affidavit of one Anderson in regard to the date of a bill of groceries sold by the affiant to the father of appellant. We cannot regard this as newly discovered testimony as that expression is used in our statutes and decisions. Appellant’s father and mother appeared on the trial and testified in regard to said bill, which was itself exhibited to the jury. Appellant’s father was a customer of Anderson, bought from him the goods in question, and the slightest diligence on the part of appellant would have resulted in securing the testimony of Anderson had it been desired.

This disposes of the complaints appearing in the record. No brief is on file for the appellant.

Being unable to agree with any of the contentions, the judgment will be affirmed. 
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