The inexperience of a deputy in the office of the clerk of the district court of Wood county, who prepared the transcript in this case, led to certain statements in our opinion which would not have been made had the transcript been accurately prepared. The motion for new trial was in fact signed and sworn to by this appellant and not by Tom Stapler as stated in our former opinion. The statement in the order of the court that the court heard the motion for new trial "and the evidence thereon submitted," should not have contained the statement just quoted, nor were the affidavits appended to the motion for new trial sworn to by one who was an attorney for the accused. While of the same name as one of appellant's attorneys, the notary public was in fact a different person.
Reviewing the case in the light of these corrections made necessary by the inaccuracy of the transcript, same fails to convince us that appellant should have had a new trial sought because of newly discovered evidence. Said evidence if true would have only showed that on the morning of January 13, 1931, appellant and his brother, in a car with another person, went to Mineola, Texas, the theory of appellant being that if he was in Mineola, or on the road to that town, on the morning of January 13th, the state's case would be thus destroyed. To require the granting of a *Page 203 new trial, the newly discovered evidence must in fact be shown to be newly discovered; also it must appear of such nature as to lead to the necessary conclusion that if before the jury a different result would likely have come about; also that the failure to discover same was not the result of the neglect of the accused. The affidavit of Mr. Russell, appended to the motion for new trial, was in effect that he knew appellant and his brother well, and that they were in his store in Mineola on January 13, 1931, and bought goods from him. The affidavit of Corley set out that on the morning of January 13, 1931, he saw appellant and his brother in the East Side Barbershop in Mineola; that he had known them well all their lives. Miss Veitch made an affidavit that on the morning of January 13, 1931, she saw appellant and his brother and another man pass her house going in the direction of Mineola, and that later that morning she saw appellant and his brother on the street of Mineola but did not speak to them. Mr. Pogue made affidavit that he saw appellant and his brother pass his house on the morning of January 13, 1931, going toward Mineola.
For at least two reasons we could scarcely hold the showing of diligence sufficient. The state witnesses, O. W. Bailey and his son, both testified that they had known appellant a long time, approximately all of his life, and that they saw him at a still, where whisky was being made and talked to him, and could not be mistaken. That this occurred on or about January 13, 1931. The state is not bound by the exact allegation as to a date, nor did these witnesses undertake to bind themselves by an exact date. Again there is an absolute lack of diligence in regard to the discovery of evidence to support the alibi of appellant as to his whereabouts on the morning of January 13th. If in fact he was not at the still as sworn to by the Baileys, and not denied by him during the trial, but was on the road to Mineola, and in the store of Mr. Russell in Mineola, and in the East Side Barbershop in the same town, — he knew these facts, and the requirement of diligence would have compelled him to have brought, or made an effort to bring to court, witnesses whom he saw in Mineola, and also to make some kind of investigation along the road between his home and Mineola for the purpose of finding out if parties saw him pass. Appellant did not take the stand and testify to an alibi. He did not have to, but certainly could not sit idly by, knowing that he had been down the road thirty miles on that morning to Mineola and had passed hundreds of houses, and knowing that he had purchased goods from Mr. Russell in Mineola, and that he saw Corley in a barber shop in said town.
The motion for rehearing will be overruled.
Overruled. *Page 204