Appellant again complains because the affidavit and information herein are signed by the criminal district attorney, claiming that the statute creating such office for McLennan County is void, and that there is no such officer known to the law. This contention was answered in our original opinion with the proposition that if such statute is void (which we do not hold), then such criminal district attorney was a de facto officer. We are again then offered by appellant the proposition that there can be no de facto officer unless there be a de jure office, citing Adamson v. State, 171 S.W.2d 121, 145 Tex.Crim. R.; Irwin v. State,177 S.W.2d 970, 971; Hill County v. Sheppard, Comptroller,178 S.W.2d 261.
With the holdings in such cases we are not attempting to disagree, but do find an exception laid down relative thereto, and that is where the office of similar functions does exist, and the name of the officer only is changed, the duties being the same as that of the established de jure office, a mere change of name of the officer would not destroy the office.
As set forth in our original opinion, the de jure office of county attorney was established in Article V, Section 21, of our State Constitution, and it is seen that the criminal district attorney was performing the functions prescribed by the Constitution as a portion of the duties of the county attorney, and we therefore remain of the opinion that a de jure office was existent at such time, and the criminal districty attorney was a de facto officer acting in a de jure office.
In appellant's motion for a new trial it is contended as a ground for the granting of the same that the affidavit of Dr. J. T. Harrington, comes under the head of newly discovered evidence, which was not earlier known by the exercise of due diligence. Dr. Harrington's affidavit shows, in substance, that he was subpoenaed as a witness in this cause, but was unable to respond when telephoned to by the sheriff by reason of other *Page 429 engagements and duties; that defendant had driven Dr. Harrington for many years, and he had never known him to be under the influence of intoxicating liquor; but defendant was temperamental under excitement, such as an arrest, and under such excitement he would act as though under the influence of intoxicating liquor to a person not knowing him; and affiant believes that the State's witness was misled by this temperamental condition of appellant into a belief that he was intoxicated. That if possible, if a new trial was granted, affiant would be willing to appear as a witness herein.
It is shown that appellant went to trial willingly without the presence of Dr. Harrington; that he had driven (a car presumptively) for the doctor for a long time, and surely knew his own condition and temperament, and surely knew that the doctor knew the same. Surely Dr. Harrington had been talked to prior to the time he had been subpoenaed prior to this trial, and we find from the record that when he failed to appear, the State agreed that if present the doctor would testify that appellant's reputation for truth and veracity was good, and such agreement was made known to the jury.
We think that appellant was lacking in diligence in discovering what the doctor would testify to in regard to appellant's temperament, and also that if same had been produced on the trial it probably would not have changed the result of the trial. The trial court was doubtless of the same opinion, and we think he was correct in overruling the motion for a new trial.
We think this case has been properly disposed of, and therefore the motion will be overruled.