Bowman v. State , 98 Tex. Crim. 377 ( 1924 )

Appellant renews complaint of the action of the lower court in refusing to grant his motion for new trial, and seems to take the position that because the affidavit attached to the motion for new trial was not formally controverted, same should have been taken as true. The only bill of exceptions in the record is to the action of the court in overruling said motion, and as part of said bill the entire oral testimony given by the alleged newly discovered witness, as given before the court upon the hearing, is set out. Where it appears from the record that the State introduced testimony upon the hearing of the motion for new trial, this is a sufficient controversy of the appellant's motion even though same was supported by affidavits and even though the record does not contain a formal controversy of said motion. Redford v. State, 262 S.W. Rep., 768; Harcrow v. State,260 S.W. 1048.

This court sometimes reverses cases for the absence of sufficient testimony to support the conclusion of guilt, but when the positive testimony of a witness to the guilty facts appears in the record, and the reliance of the accused is upon impeachment of the witness, the rule that the jury are the judges of the credibility of the witnesses and of the facts proven ordinarily controls, and in such case this court rarely disturbs the verdict of the jury.

The motion for rehearing will be overruled.

Overruled.