This prosecution was under an information charging appellant with an aggravated assault and battery. The defendant pleaded not guilty, submitted matters of law, as well as of fact, to the court, and the court found him guilty of a simple assault.
The only assignment of error is: u The court erred in overruling defendant’s motion for a new trial.” The evidence introduced on the part of the State sustains the judgment of the court below. The defendant offered no evidence.
The motion for new trial was based mainly upon the newly discovered evidence of one Seaborn Williams. The motion is not accompanied with the affidavit of said Williams, but with the affidavit of G. A. Hinson, who states that Dr. T. H. East told him that Seaborn Williams was present at the time of the altercation, and could prove the facts set out in the motion. The residence of Williams is not given. It is stated in the motion that he is not accessible at this time.
The defendant has not brought himself within the well-established rules, to entitle him to a new trial on the ground of newly discovered evidence. These rules are plainly set out by this court in the case of West v. The State, 2 Texas Ct. App. 209. Defendant further states in his motion that said East, and one Vaughn, who resides in Brown County, are material witnesses to his defence; that defendant had never had them subpoenaed because they both told him that they would appear at the term of the court when the case was tried, and testify; and that defendant, relying on their statements aforesaid, failed to have them subpoenaed. If the defendant did not take the necessary steps provided by law to secure the attendance of his witnesses, but relied
The judgment is affirmed.
Affirmed.