
    HOGAN v. STATE.
    (Court of Criminal Appeals of Texas.
    May 22, 1912.)
    1. Criminal Law (§ 1159) — Appeai>-Veb-DICT— CONCLUSIVENESS.
    If the evidence would sustain a verdict of conviction, the Court of Criminal Appeals cannot disturb it, unless no reasonable man would believe it.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 3067-3071; Dec. Dig. § 1159.]
    2. Criminal Law (§ 938) — New Trial — Newly Discovered Evidence.
    A new trial for alleged newly discovered evidence was properly denied, where the affidavits showed that accused must have known of the alleged evidence before the trial.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2306-2317; Dee. Dig. § 938.]
    3. Criminal Law (§ 941) — New Trial — Cumulative Evidence.
    A new trial for newly discovered evidence, which was only cumulative of what three or four other witnesses testified on the trial, was properly denied.
    [Ed. Nóte. — For other cases, see Criminal Law, Cent. Dig. §§ 2328-2330; Dec. Dig. § 941.]
    4. Affidavits (§ 5) — Who may Take — Attorney eor Party.
    Affidavits taken on a motion for a new trial by an attorney of record in the case cannot be considered.
    [Ed. Note. — Eor other cases, see Affidavits, Cent. Dig. §§ 18-27; Dec. Dig. § 5.]
    Appeal from Nacogdoches County Court; E. P. Marshall, Judge.
    Allan Hogan was convicted of unlawfully carrying a pistol, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant appeals from a conviction for unlawfully carrying a pistol.

The state’s witness, Mrs. Bailey, testified: “I was at the residence of my son, and while there appellant came into the house in his shirt sleeves. He had on a belt and pistol scabbard, and I saw the handle of the pistol sticking out of the scabbard. The handle of the pistol was of black substance, and the metal between the sides of the handle was bright or nickel plated.” She was certain she saw the handle of a pistol sticking out of the scabbard. Appellant’s witnesses all admit he was wearing a belt and scabbard, but say there was no pistol in the scabbard, and numerically the number of witnesses for appellant far exceeded the number of witnesses for the state. However, if the evidence would sustain the verdict, we are not authorized to disturb it, unless it is shown to be so unreliable that no reasonable man would accept it as true. In this case the state’s witness makes a plain matter of fact statement. The jury believed her, and the trial court refused to disturb the verdict, and at this distance we cannot say they were not justified in so doing.

The alleged newly discovered evidence presents no reason for a reversal of the case. In the first place, the affidavits themselves show that appellant must have been aware of what they knew as well before as subsequent to the trial. In the next place, they would testify as did the witnesses present— that they saw the belt and scabbard, but noticed no pistol in the scabbard. This would be but cumulative of what three or four witnesses testified on the trial. In the third place, we would call attention to the fact that the affidavits were taken by an attorney of record in the case, and therefore cannot be considered by this court. Maples v. State, 60 Tex. Cr. R. 169, 131 S. W. 567.

The judgment is affirmed.  