Appellant renews his contention that he should have been awarded a new trial because of the claimed newly discovered evidence of Joe Acosta. Said witness' affidavit is attached to the motion for new trial. Nowhere in said affidavit does the witness say that he did not *Page 625 before the trial acquaint appellant with the facts which witness in his affidavit claimed to know. Appellant was not confined in jail; he was out on bond up to the time of his trial, was related to witness and lived not far from him. Upon the hearing of the motion for new trial appellant's attorney testified that he had no knowledge that Joe Acosta was present when the difficulty occurred, or what his evidence regarding same would be, until after the conviction of appellant, and when the attorney was preparing for trial in a companion case. There are averments in the motion for new trial which if properly supported by competent evidence, would show that the proposed testimony of Joe Acosta was not known to appellant until after the trial. However, appellant did not testify on the hearing of the motion regarding such matter, neither did Joe Acosta. Although the motion for new trial was sworn to by appellant such verification did not prove the truth of the matters set up in the motion. It is regarded generally as only a pleading. Noble v. State, 98 Tex.Crim. Rep.,266 S.W. 412; Johnson v. State, 111 Tex.Crim. Rep.,13 S.W.2d 114; Rollins v. State, 53 S.W.2d 786; Mershon v. State,55 S.W.2d 836; Waster v. State, 56 S.W.2d 455.
For the additional reasons stated here we can not hold that the learned trial court committed error in refusing a new trial for newly discovered evidence.
The motion for rehearing is overruled.
Overruled.