Sumerall v. State

ON MOTION FOR REHEARING.

KRUEGER, Judge.

Appellant, in his motion for a rehearing, contends that we erred in several respects in our original opinion. His main contention seems to be that the trial court erred in declining to grant him a new trial upon alleged newly discovered evidence. We are not in accord with his contention. The record shows that the alleged offense was committed on the night of October 21, 1939. A complaint was filed against him on the 23rd of said month. He was arrested on the 28th, when he gave bond for his appearance in court at which time his case was set for trial for November 2nd. He made no effort to obtain process for any witnesses and to secure their attendance although there were approximately 150 to 200 people present when the alleged offense was committed, all or nearly all of whom he knew, but so far as this record shows, he did not interview a single person of those who were present.

On the morning of his trial he made a verbal request for a continuance by reason of the absence of Mrs. Ñepper. The court had process issued for Mrs. Nepper who, in response to a summons, appeared and testified for appellant. He claims some agreement with the injured party that she would not prosecute the case if he would pay the doctor’s.bills, etc. After the complaint was filed, the prosecutrix could not legally enter into an agreement to stop the prosecution for an offense denounced by our statutes. The evidence, in our opinion, is sufficient to sustain the conviction. Although the punishment may be somewhat severe, yet it is within.the limit prescribed by law for such an offense, and we would not, under the facts, be justified in holding it to be excessive.

The motion is overruled.

*616. The foregoing opinion by the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.