Proper appeal bond having been filed, the order and judgment dismissing the appeal is set aside, the appeal is reinstated and the case now decided on its merits.
There is but one bill of exceptions in which complaint appears of the refusal of a new trial sought because of newly discovered evidence. The record discloses without dispute that on the night in question Leon Hudson, Audry Hudson, Ed Grogan and Pat Hanson went in a car to a point near appellant's home where Leon Hudson left the car, coming back shortly with a quart of whisky. He testified on this trial that he bought it from appellant for three dollars. Audry Hudson swore that he was with the party; that Leon left at the point mentioned and came back presently with the whisky. The new trial was asked upon the ground that the evidence of Ed Grogan and Pat Hanson was newly discovered. Each of these made affidavit that they were in the party mentioned, and that when Leon came back with the whisky he told them he got it from a man named Pearson. The record further discloses that Ed Grogan was subpoenaed as a witness for the State and was present at the trial, and we see no reason why appellant's attorney by talking to him could not have discovered what his evidence was. Pat Hanson was in the county of the trial at the time and no effort was made to talk to him or have him present. No evasion or misrepresentation of what their testimony would be was ever made to revealed to appellant or his attorney the names of the parties who were with the two Hudson boys on the occasion of the alleged purchase of the liquor. The slightest effort by talking with Grogan, who was at the trial, would have made known to appellant that which is now claimed to be newly discovered evidence. Grogan was present and Hanson was within easy reach of process of the court. This was not diligence. Powell v. State, 36 Tex.Crim. Rep.. A general statement in the motion that diligence was used and that by the exercise thereof appellant could not have discovered the testimony, is not sufficient. Wilson v. State, 37 Tex.Crim. Rep.. The indictment was returned in September, 1922, and the trial was not had until April, 1923. The record is bare of any showing of an effort during that time by appellant or those representing him to discover the testimony relied upon as newly discovered in this case.
Being unable to agree with appellant's contention, and being of opinion that no error appeared in overruling the motion, the judgment will be affirmed. *Page 9
ON REHEARING.