The opinion
ON REHEARING.
October 17, 1923.
MORROW, Presiding Judge.
— State’s counsel insists that the rules of practice preclude the consideration by this court of the affidavits embraced in the motion for new trial to which reference is made in the original opinion. ICo maintains this position because of the recital in the judgment overruling the motion for new trial to the effect that “said motion and the evidence thereon having been heard by the court.” It is the rule that when the motion for new trial raises questions of fact, the trial judge lias the privilege of determining whether they are true, and “in such case the judge shall hear evidence by affidavit or otherwise and determine the issue.” (Code of Crim. Proc., Art. 841.) When on appeal it appears that in passing on the motion, the trial judge relied upon evidence other than that furnished by the affidavits attached to the motion for new trial, and the State’s contest thereof, this court cannot determine whether the issue of fact was correctly decided in the absence of a statement of facts or bill of exceptions embracing the evidence that was heard, and must therefore presume that the court’s ruling upon the evidence before it was correct. When it does not appear that there was other evidence, the correctness of the ruling will be tested by the affidavits. Washington v. State, 86 Texas Crim. Rep., 652 , 218 S. W. Rep., 1043 . Under the rule favoring a liberal consideration of the record in favor of a decision upon the merits in a case in which the death penalty is assessed, the recital in the judgment in this case does not characterize it as one in which the hearing was “otherwise than” by the affidavits attached to the pleading. It may be added that for the reason indicated in the original opinion that considering the evidence and the manner of trial, there is such doubt' touching the identity of the offender as rendered it necessary that the appellant be awarded another trial.
The motion for rehearing is overruled.
Overruled.