Carusales v. State

BROOKS, Judge. Appellant was convicted of night-time burglary of a private residence and his punishment assessed at confinement in the *2 penitentiary for a term of five years. We have carefully examined the charge of the court, and it is altogether applicable to the facts proved upon the trial of the case. The motion for new trial urges various errors, which we do not think are well taken. Appellant filed an amended motion for new trial after the two days had elapsed for the filing of motion for new trial. The court sustained the motion of the district attorney and struck out the amended motion. Under the showing here, there was no error in this. Under article 819, Code of Criminal Procedure, it is within the sound discretion of the court to permit amended motions for new trial to be filed after the two days allowed by law have expired. For collation of authorities on this subject, see sec. 1154, White’s Ann. Code Crim. Proc. Furthermore, after a careful review of the amended motion there is no matter relied upon for new trial not urged in the original motion, except what appellant terms newly discovered evidence. We do not think it comes within the rule of newly discovered evidence, and were we to consider said amended motion it would not change the result. No error appearing in the record, the judgment is affirmed. Affirmed.