In response to the insistence in the motion that there was diligence in an effort to procure testimony alleged in the motion for new trial to be newly discovered, we have again examined the record. We find nothing remotely suggesting diligence in the matter. We observe that the record shows that five persons went together in a car to a point on the road about 100 or 150 yards from appellant's house on the night of the alleged sale, Leon Hudson swore that he got out of the car and went to appellant's house and bought the whisky in question from the latter, and brought it back to the car. Three of the occupants of the car were present at the trial as witnesses. Two were used by the State and the other was not put on the stand. No effort on the part of appellant or anyone for him to procure the presence or testimony of the other two men who were in the car, is shown, nor was any effort made to ascertain the testimony of the witness who was present but unused.
Appellant insists that justice calls for the granting of his motion for new trial. Let us see. In Duncan v. Magette,25 Tex. 253 Judge Roberts used the following language:
"Whoever undertakes to determine a case solely by his own notions of its abstract justice, breaks down the barriers by which rules of justice are erected into a system, and thereby annihilates law.
A sense of justice, however, must and should have an important influence upon every well organized mind in the adjudication of causes. Its proper province is to superinduce an anxious desire to search out and apply, in their true spirit, the appropriate rules of law. It cannot be lost sight of. In this, it is like the polar star that guides the voyager, although it may not stand over the port of destination.
To follow the dictates of justice, when in harmony with the law, must be a pleasure; but to follow the rules of law, in their true spirit, to whatever consequences they may lead, is a duty."
The new evidence relied on by appellant was evidenced by an affidavit made by the witness who was present at court but not used, and one of the other occupants of the car who was in the county and no effort made to obtain his presence. The substance of their affidavits was that when Leon Hudson came back with the whisky on the night in question he said he got it from a man named Pearson. Appellant took the stand and testified in his own behalf but did not claim that any man named Pearson had ever been at his house or that he knew any man named Pearson. If it be conceded for the sake of argument, that Hudson told any of the party in his car when he got back that he got the whisky from some one named Pearson, such fact if admitted by Hudson or proven by the testimony of the absent witnesses, could but affect Hudson's credibility as a witness. It is a sad fact that purchasers *Page 10 of intoxicating liquor, sold to them in violation of the law, seem often possessed of the delusion that they must conceal the identity of the person thus guilty. Hudson might have admitted making the statement that he bought it from a man named Pearson, if he had been asked about it while on the witness stand. We have here then two statutory rules, one requiring diligence in the preparation of a case for trial on the part of the accused, and the other setting forth that a new trial will not be granted for new evidence whose effect is to impeach a witness, both of which rules we are asked to set aside upon the proposition that so-called justice would be thus served. In our view, to put aside these settled rules, as said by Judge Roberts, would be to break down the barriers by which the rules of justice are erected into a system, and thereby annihilate law. We regret that we can not do so.
The motion for rehearing will be overruled.
Motion overruled.