
    HOLLOWAY v. STATE.
    (No. 4359.)
    (Court of Criminal Appeals of Texas.
    Feb. 14, 1917.
    Rehearing Denied March 28, 1917.)
    1. Affidavits <&wkey;>2 — Authority to Take— Motion for New Trial.
    • Where affidavits attached to motion for new trial were sworn to before attorney who defended accused, they will not be considered on appeal.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 5-15.]
    2. Criminal Law <&wkey;939(8) — Motion fob New Trial — Newly Discovered Evidence —Diligence.
    Where witnesses for whose testimony a new trial is sought were present at trial or could have been easily secured, and defendant’s wife knew of their presence at the time the alleged_ sale of liquor was made, defendant’s statement' that such witnesses refused to talk to him, and that he did not know of their testimony, does not show sufficient diligence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2319.]
    Appeal from District Court, Lamar Coun-' ty; Ben H. Denton, Judge.
    Kelso Holloway was convicted of pursuing the business of selling intoxicating liqtiors in local option territory, and appeals.
    Affirmed.
    W. E. Calvin, of Paris, for appellant. E. B. Plendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convict* ed of pursuing the business of selling intoxicating liquors in local option territory; his punishment being assessed at three years’ confinement in the penitentiary.

There are no bills of exception in the record. There are two affidavits attached to the motion for new trial setting up some equitable grounds why a new trial should be awarded. It is unnecessary to discuss them for the reason they were sworn to before the attorney who defended appellant in the trial court. Under the decisions of this court this is not permissible.

But in any event, the testimony shows that one or more of the defendant’s witnesses, and among others his wife, knew of the presence of the two affiants at her husband’s house at the time the two sales were made. These sales occurred at different times. Both affiants say they were present at the time, but practically deny the sales. They were not placed upon the stand as witnesses. Appellant in his motion for new trial states under oath that he did not know he could prove these facts by the witnesses; that one or perhaps both of them refused to talk to him or his counsel in regard to the transaction. One of the affiants, Mr. Strickland, states in his affidavit that he was present and would now testify that the state’s witness, who was with him, did not state the facts as they occurred at the time of the alleged purchase. In other words, his testimony would go to show that such a purchase did not occur. He was present at the trial, but not used. Dowd, the other affiant, could have been secured. These witnesses could have been used during the trial as fully shown by this record. Appellant's wife proved an alibi for him at the time of the alleged sale, but shows Strickland was present at the time one of the witnesses states he bought it. Under all of these circumstances we do not believe there was sufficient diligence shown, and that the affidavits in any event could not be used because sworn to before appellant’s attorney. It is unnecessary, we think, to sum up the testimony. The state made a ease of sufficient importance and strength to justify the verdict.

Finding no reversible error in the record, the judgment is affirmed. 
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