In the statement of facts herein is inserted the transcript of the testimony heard by an examining magistrate. The testimony was taken down before said magistrate in question and answer form, and having been introduced as testimony on this trial, it was proper to insert it into the statement of facts in the same form in which it was offered in evidence. Same appeared in this statement of facts in such way as not to challenge our attention to the fact on original consideration, that this was the reproduction of a written instrument in evidence. Said transcript contained thirty-seven pages of questions and answers. Aside from same, other parts of the statement of facts herein are in question and answer form, but as the major part of the remainder is in narrative form, we have concluded to review the facts. We deem same amply sufficient to support the conclusion reached by the jury.
The motion for new trial set up newly discovered evidence, viz: the testimony of two boys. The facts appearing in the record on the question of diligence in this matter do not measure up to the demand of the law. There is no showing of the source from which appellant received this testimony or became aware of same. There is no testimony or affidavit from his attorney of the fact that same was not known to him. Both *Page 271 boys referred to testified on the hearing of the motion and said they were by the side of the store whose proprietor was robbed about 9:40 at night. They saw two men drive up in a green car and go into the store. One of the boys said that when the men came out they both had pistols and that one of them knocked him down. He was of opinion that appellant was not either one of the men. The other boy said he went to the door of the store and looked in while the robbery was going on but was unable to say whether appellant was or was not one of the two men committing the robbery. Aside from the lack of diligence shown, we are further of opinion that the testimony of the boy who was of opinion that appellant was not one of the men, relating to the question of identity alone and the circumstances surrounding his seeing the party, that is, in the night time, and when they passed in a hasty manner and one of them knocked him down, would not be likely to be taken by the jury as seriously controverting the positive testimony of three witnesses who were in the lighted store where the robbery occurred, each of whom positively identified appellant as one of the men. We think the learned trial judge did not abuse his discretion in overruling the motion.
Appellant's bill of exceptions No. 2 complains of a question propounded by the district attorney to appellant who took the witness stand, also to a statement made in opposition to said objection to the effect that the State wanted the facts so that the jury might know whether it was "going to believe this negro defense alibi", which remark was excepted to and seems to be the thing complained of in the bill. The court instructed the jury not to consider this statement. We perceive no matter of serious injury, if any at all.
Appellant's bills Nos. 3, 4, 7 and 9 were of the manner and method of the examination of witnesses by counsel for the state. Without setting same out at length, we observe that in one or two minor matters questions were asked which might be deemed objectionable but concerning matters which seem of but slight importance.
Bills of exception Nos. 6, 10 and 12 were in question and answer form and for that reason cannot be considered by us under Art. 846 Vernon's C. C. P. Bills of exception Nos. 5 and 11 show that appellant's objections to certain matters were overruled but same do not set out what evidence, if any, was then admitted. *Page 272
Being unable to agree with appellant's motion, same will be overruled.
Overruled.