It is charged that appellant sold intoxicating liquors to Phil Phillips, who, in his testimony, affirmed *Page 591 that he bought it, though appellant denied the sale. The settlement by the jury of the conflict between them is binding upon this court.
The motion for new trial does not comply with the rules necessary to require consideration of an averment charging that new and material evidence has been discovered. Art. 837, sub-division 6, Vernon's Tex.Crim. Stat., Vol. 2, pp. 777 and 778. The motion is not sworn to. It also fails to allege that any new evidence has been discovered since the trial, or to excuse its nondiscovery. The only affidavit attached is that of the witness Bennett to the effect that he would give testimony against the good reputation for truth and veracity of the witness Phillips. This was impeaching in its nature and cumulative. Such testimony ordinarily would not support the averment in question. Vernon's Texas Crim. Stat., Vol. 2, p. 784 and 785, notes 8 and 9, and cases cited.
It affirmatively appears from the record that there was evidence other than the affidavit attached to the motion heard by the court before refusing the new trial. Under such circumstances, the affidavit attached to the motion cannot be treated as the only evidence heard. See Cade v. State, No. 7740, recently decided, and cases therein cited. If so considered, the affidavit is not sufficient for the reason stated above.
The failure to procure counsel being apparently due to the lack of diligence on the part of the appellant, he cannot avail himself of it after verdict. Vernon's Texas Crim. Stat., Vol. 2, p. 305, note 9.
The motion to postpone shows no diligence to procure the alleged absent testimony.
The motion is overruled.
Overruled.