1. New Trial — Newly Discovered Evidence — Affidavit.
A motion for a new trial on account of newly discovered evidence, which is not sworn to nor accompanied by the affidavit of the defendant or his counsel, is wholly insufficient.
2. Same — Impeaching Evidence.
A motion for a new trial will not be granted for newly discovered evidence which is strictly and purely impeaching in its character and effect.
3. Objectionable Argument of Counsel — Practice on Appeal.
To avail, on appeal, of objectionable remarks of counsel, the same must have been objected to at the time, and must have been perpetuated in a bill of exceptions.
DAVIDSON, JUDGE.
Appellant was convicted of robbery, given 20 years in the penitentiary, and prosecutes this appeal. There are no bills of exception contained in the record. There were two issues presented by the evidence for the consideration of the jury, robbery and alibi. These issues were submitted by the charge in correct and appropriate terms. After a careful review of the evidence we are of opinion the verdict is fully justified by the testimony. As a ground of the motion for a new trial it is alleged that one Frank Austin would testify on another trial, if present, that the injured party made to him statements at variance with his testimony delivered on the trial. The motion for a new trial is not sworn to, nor does the affidavit of appellant or his counsel accompany the motion. This is in no sense a compliance with the law, and, besides, the testimony is strictly and purely impeaching in its character and effect. Wilson's Cr. St., § 2544. If the remarks of State's counsel occurred, as stated in the motion for a new trial, they should have been objected to at the time, and perpetuated in a bill of exceptions. This was not done. Wilson's Cr. St., § 2321; Mason v. State, 15 Texas Crim. App., 534; Jackson v. State, 18 Texas Crim. App., 586; Watson v. State, 28 Texas Crim. App., 34; Wilson v. State, 32 Tex.Crim. Rep.; Davis v. State, 32 Tex. Crim. 377; Wolfforth v. State, 31 Tex. Crim. 387. The evidence is sufficient to sustain the verdict, and the judgment is affirmed.
Affirmed.