Paul Frederickson v. State

CHRISTIAN, Judge. The offense is burglary; the punishment, confinement in the penitentiary for two years. The blacksmith shop of A. T. Jobe was burglarized on the night of January 21, 1935, and an electric drill taken therefrom. This drill was found in the possession of appellant about the first of February, 1935, after officers searched his garage. When the drill was discovered appellant fled. Appellant did not testify, but introduced witnesses who declared that the drill in question had been purchased by appellant from John Ford. Ford testified for the State, denying that he had sold the drill to appellant. We deem the evidence sufficient to support the judgment of conviction. In his motion for new trial appellant set up newly discovered evidence. An examination of the affidavits attached to the motion discloses that several of the witnesses would give testimony which is purely cumulative of that adduced on the trial, while the others would testify that the general reputation of the witness Ford for truth and veracity was bad and that he had been frequently charged with offenses. The opinion *84 is expressed that the trial judge was warranted in overruling the motion. It is the general rule that newly discovered testimony which is merely cumulative of that adduced on the trial affords no ground for granting a new trial. Branch’s Annotated Penal Code, sec. 203; Edwards v. State, 172 S. W., 227. Moreover, newly discovered testimony which would not be admissible as original evidence “but which could only be used to discredit or impeach the testimony of a witness who had testified on the trial of a case, is not ordinarily ground for a new trial, and the discretion of the trial court in refusing a new trial sought to obtain such testimony will not be revised on appeal.” Branch’s Annotated Penal Code, sec. 202; White v. State, 177 S. W., 95. The judgment is affirmed. Affirmed. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.