Moon v. State , 125 Tex. Crim. 570 ( 1934 )

We notice each of the grounds of appellant's motion for rehearing, in inverse order.

(1) Newly discovered evidence. The property in question was stolen on the night of February 5, 1933. Appellant and his witnesses locate him at the residence of Mr. Turner that night, thus making out a defense of an alibi, if believed by the jury. The two newly discovered witnesses make affidavits that they knew appellant well, and that they saw and were with him at Turner's residence on the night of February 5, 1933. Being well known to and by appellant, such knowledge was necessarily known to appellant at the time of his trial, and hence can not in any sense be said to be newly discovered. Aven v. State,95 Tex. Crim. 155; Behrens v. State, 99 Tex.Crim. Rep.; Garlington v. State, 99 Tex.Crim. Rep.; White v. State, 94 Tex.Crim. Rep.; Cooper v. State, 103 Tex. Crim. 226; Brady v. State, 119 Tex.Crim. Rep.; Jackson v. State, 115 Tex.Crim. Rep..

(2) The allegation of the date of the alleged theft as of January 7, 1933, is not fatally variant from proof of such theft on February 5, 1933, the indictment having been returned in April of said year. Article 396, C. C. P., subdiv. 6; Lucas v. State, 27 Texas App., 323; Cudd v. State, 28 Texas App., 129; Venn v. State, 85 Tex.Crim. Rep.; Daniel v. State, 90 Tex.Crim. Rep.; Guynes v. State, 96 Tex. Crim. 650; Mathis v. State, 97 Tex.Crim. Rep..

(3) The evidence appears to be entirely sufficient. The recitals of the facts herein in our original opinion are correct, and show ample testimony to support the verdict.

Being unable to agree with any contention made by appellant, the motion for rehearing will be overruled.

Overruled.