
    GATES v. STATE.
    (No. 4824.)
    (Court of Criminal Appeals of Texas.
    Jan. 23, 1918.)
    1. Criminal Law <@=>958(4) — New Trial-Motion — Requisites and Sufficiency.
    Failure to attach to motion for now trial, on ground of newly discovered evidence, the affidavit of the person whose testimony is alleged to have been newly discovered, renders the motion insufficient.
    2. Criminal Law <@=>1092(6), 1099(5) — Appeal-Preservation of Exceptions.
    Bill of exceptions and statement of facts filed in the lower court, after the adjournment of the term, cannot be considered on- appeal.
    
      Appeal from District Court, Trinity County; S. W. Dean, Judge.
    
    P. W. Gates was convicted of assault with intent to kill, and he appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRBNDERGAST, J.

Appellant was convicted of an assault with intent to kill and assessed the lowest punishment.

The evidence was undoubtedly sufficient to sustain the verdict. Every issue raised was submitted by the court in an apt charge, to which there was no objection.

In his motion for a new trial he sought a new trial on the ground of claimed newly discovered evidence. He did not attach thereto the affidavit of the person wnose testimony he -claimed was newly discovered, and his motion on this ground is wholly insufficient under the well-established law pertaining thereto. Plowever, the court heard the testimony on this ground, and after hearing it overruled the motion. This evidence was attempted to be preserved in both a bill of exception and a statement of facts, but both filed in the lower court after the adjournment of the term; hence this question cannot be reviewed by this court, as has many times been held. Reyes v. State, 196 S. W. 533, and cases there collated.

There is nothing else to discuss. The judgment is affirmed. 
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