
    GILES v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 11, 1912.)
    1. Criminal Law (§ 949) — New Trial — Grounds — Verification.
    A judgment of conviction will not be set aside on the ground that accused, as shown by his verification alone in support of his motion for new trial, was taken by surprise, in that his attorneys, who had been employed by his relatives, refused to. go into the case at the last moment, and before he had opportunity to employ other counsel, and that he was thereby deprived of witnesses who could establish a defense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2337-2344; Dec. Dig. § 949.]
    2. Criminal Law (§ 1114) — Record—Absence of Testimony and Bills of Exceptions — Questions Reviewable.
    Where the record on appeal does not contain the testimony or bills of exceptions, the question whether an issue was material, and that accused was entitled to have the jury pase on certain testimony, will not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2918, 2921; Dec. Dig. § 1114.)
    Appeal from Criminal District Court, Dallas County; Barry Miller, Judge.
    Merritt Giles was convicted of burglary of a railroad car, and be appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic ana section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of burglary of a railroad car; bis punishment being assessed at two years’ confinement in the penitentiary.

The grounds of the motion for a new trial are not verified, other than by the fact that appellant swore to the motion. The first ground of the motion sets out the fact that he was taken by surprise, in that his. attorneys, who had been employed by his relatives, refused to go into the case at the last moment and before he had opportunity to employ other counsel; that he was deprived of any witnesses by reason of that fact; that he could establish a defense by several witnesses whose names are mentioned, and by whom he could prove an alibi. This is in no wa_y verified, except by his personal affidavit." The attorneys who were supposed to have been employed by his relatives were not brought before the court, nor was any. evidence offered to show that his statement was true. A judgment of conviction usually will not be set aside simply upon the affidavit of counsel, without verification in some manner by bill of exceptions or facts introduced to show the truthfulness of the statement.

By the second ground of the motion he says he could show he was arrested by a policeman named Briggs, and that on. the trial Hardy swore that he was the man who arrested defendant. He says this was a material issue, and that he was entitled to have the jury pass on this testimony. These matters are all too late, when raised in the motion for new trial, and in the absence of the testimony and bills of exception, which are not sent up with the record, we cannot intelligently revise any of these questions.

The judgment is affirmed.  