Offense, murder; penalty, ninety-nine years in the penitentiary.
Deceased was the father-in-law of appellant. Bad feeling had existed between the two for many years. The State's testimony tended to show that on the morning of the tragedy they met. Appellant's automobile was in the middle of the road and blocked the passage of deceased. According to the res gestae and dying statement of deceased, the appellant said when he met him "The doctors say that I'm going crazy, and I want to kill you before I do." Whereupon he began shooting him; that he got out and tried to protect himself behind his car but that appellant drove his car back and forth and continued to shoot at him; he begged him not to do it, telling him that he had already killed him, to which appellant replied, "Well, you can stand a little more yet." *Page 499
For the appellant it was shown in substance that he was a cripple, practically unable to walk, but able to drive a car; that deceased had threatened his life and had tried to kill him before; that on the morning of the tragedy they met by accident and that it appeared to appellant that deceased was about to carry out his previous threat to kill him and that he shot in self-defense. Much evidence of insanity was also introduced in behalf of appellant.
These were the main fact issues. The evidence is sufficient in our opinion to support the verdict of the jury.
Twelve bills of exception are shown in the record. Appellant's motion for new trial was overruled and court adjourned on November 30, 1929. Appellant was given sixty days from this date by the Court in which to file bills of exception. This time expired on January 29, 1930. On February 15, 1930, appellant filed all of his bills of exception. These were filed too late for consideration by this Court. The question has been too ofttimes decided to require discussion and we content ourselves with the citation of the following authorities: Art. 760, Vernon's Texas C. C. P., Note 50; Henry v. State, 11 S.W.2d 512; Jackson v. State, 270 S.W. 1018; Martini v. State, 283 S.W. 505.
The only other question properly presented for review which we deem necessary to mention is that of newly discovered evidence. The order overruling appellant's motion for new trial which presents this question recites that "evidence was heard thereon." Appellant has not seen fit to bring this evidence forward for review, there being no statement of facts with this record which purports to contain the evidence heard by the trial court on motion for new trial. The rule is stated in 4 Tex. Jur., Paragraph 142, as follows:
"Where the record shows that the court heard other evidence, as by a recital to that effect in the order, the appellate court will not review an order overruling a motion for a new trial based on the ground of newly discovered evidence."
The following authorities are cited in support of this text: Scroggins v. State, 17 S.W.2d 829; Robinson v. State,16 S.W.2d 233, 17 S.W.2d 462; Venn v. State,15 S.W.2d 632; Sanchez v. State, 15 S.W.2d 632; Botts v. State,13 S.W.2d 846; Cooper v. State, 13 S.W.2d 834; Rios v. State, 7 S.W.2d 535; Sykes v. State, 2 S.W.2d 863; Holmes v. State, 293 S.W. 571; Volantino v. State, 275 S.W. 1077; Brown v. State, 274 S.W. 588; Boyd v. State, 272 S.W. 134; Crouchette v. State, 271 S.W. 99; Jasper v. State,266 S.W. 508; Hughey v. *Page 500 State, 265 S.W. 1047; Harcrow v. State, 261 S.W. 1046; Collins v. State, 254 S.W. 805.
The condition of the record presented here forces us to presume that the trial court had before him evidence sufficient to sustain his order overruling appellant's motion for new trial based on the ground of newly discovered evidence. A multitude of authorities so hold.
Finding no error in the record, the judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.