Clay v. State

HARPER, Judge.

Appellant was prosecuted and convicted of selling whisky in violation of the prohibition law, and his punishment assessed at a fine of $100 and twenty days imprisonment in the county jail, from which judgment he prosecutes this appeal.

This ease was tried November 18, 1913, and although he registered no exceptions to the charge as given at the time of the trial, yet in his motion for a new trial he seeks to complain of the charge of the court. Since' the amendment of article 743 by the Thirty-third Legislature, the exceptions and objections to a charge as given must be filed at the time of the trial and before verdict rendered. It is too late to complain of the charge after verdict rendered, unless the charge is so drawn as to prevent appellant from having a fair and impartial trial. (Art. 743, Acts of Thirty-third Legislature, p. 278.)

While the evidence in this case is conflicting, yet Lige Johnson swears he purchased a quart of whisky from appellant and paid him $1.50 for it, and Fairley Lee swears he saw Johnson get the whisky, but says appellant told him the whisky belonged to Neal Trotti. It would be immaterial to whom the whisky belonged if appellant sold the whisky to Johnson and received the money for it. Under the evidence we will not disturb the verdict because of the conflict in the testimony.

The alleged newly discovered testimony is not supported by the affidavit of the alleged newly discovered witness, nor is there any reason, assigned why his affidavit is not attached. Under such circumstances this presents no ground for a new trial. Love v. State, 3 Texas Crim. App., 501; Cotton v. State, 4 Texas, 260 ; Campbell v. State, 29 Texas, 490 ; Evans v. State, 6 Texas Crim. App., 513.

The judgment is affirmed.

Affirmed.