Carrico v. State , 36 Tex. Crim. 618 ( 1896 )

Appellant was convicted of the theft of hogs, and given a term of two years in the penitentiary; hence this appeal. The indictment charged Wine Carrico, Carl Carrico, and Frank Nail with the theft of six hogs, the property of Albert Soloman. On the trial Frank Nail was acquitted, and the other two defendants convicted. The court granted a new trial as to Carl Carrico, and overruled a new trial as to Wine Carrico. Appellant made a motion for a new trial on the ground of newly-discovered testimony. The testimony consisted in the evidence of Frank Nail, who, it is alleged, was acquitted of this offense, and was now a competent witness for the defendant, and his testimony was material. And also because of the newly-discovered evidence of Newman, Overton, Ritter, and Thomas. Appellant proposed to prove by these witnesses that one of the State's witnesses, Gamblin, had very bad eyesight, and was unable to see and identify any of the hogs testified about by him for the State. As to the witness, Nail, it appears that he testified on the trial of the case, and the only circumstance that would put his testimony in a better light for the defendant would be that by his acquittal he is now relieved of the stigma of any guilty connection with the offense. The State, however, shows by affidavits that hogs of other persons were stolen at the same time, and as a part of the same transaction charged in this case against the defendant, and that said Frank Nail is still under indictment jointly with these defendants on account of said other thefts of hogs; and, inasmuch as it is the same transaction, he would be incompetent to testify, on a new trial of this case. This affidavit by the State is not questioned, and in our opinion said witness would not be qualified to testify on another trial. As to the other witnesses by whom it is proposed to prove that the eyesight of the said Gamblin was bad, it does not appear to us to be newly-discovered testimony, as no sufficient diligence is shown why said testimony was not known at the time of the trial. The defendant made the perceptive faculties of the said Gamblin an issue in the case, and introduced testimony to that effect, and it is shown that the witness, Newman, was present when the witness, Berryhill, testified as to an occurrence which indicated the bad eyesight of the said Gamblin, to-wit: that on one occasion he did not know a dog from a hog, though the dog was very near him; yet Newman was not placed on the stand by the defendant, thought he called him evidently for that purpose, and sent him back again under the rule. As this question of eyesight of Gamblin was an issue in the case, and this witness, Gamblin, lived in that community, it would certainly appear (if his perceptive faculties were as bad as appellant contends that the fact could have easily, been ascertained by the least diligence on the part of the defendant or his counsel. There was no error in the court overruling the application of the appellant for a new trial based on the alleged newly-discovered evidence. Appellant also contends that the evidence in this case, being of a circumstantial character, is not sufficient to sustain the conviction. We have carefully examined the record, and we differ with appellant as to this matter. In our opinion, the testimony is ample to support the verdict, and the judgment is affirmed.

Affirmed.