
    TAYLOR v. STATE.
    (No. 8683.)
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1925.)
    1. Criminal law <&wkey;938 (I) — Absence of witness ground for new trial only when defendant meets requirements as to newly discovered evidence.
    Absence of eyewitness to shooting is not ground for new trial where defendant doe.s not show compliance with law making testimony of witness available as newly discovered evidence.
    2. Criminal law &wkey;>939(3) — Absence of witness not ground for new trial where diligence lacking.
    Absence of witness is not valid ground for new trial, where diligence in ascertaining knowledge of witness necessary to render his testimony available as newly discovered evidence is lacking.
    Appeal from District Court, Brazoria County; M. S. Munson, Judge.
    Dave Taylor was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is assault with intent to murder; punishment fixed at confinement in the penitentiary for a period of two years.

Appellant, using a pistol, shot and wounded Hubbard Williams. A few days before they had a difficulty, and on the present occasion Williams walked up to where the appellant was at work and was shot by him. Williams testified that he approached the appellant and addressed him for the purpose of making friends with him. According to the appellant, at the time of the previous difficulty, Williams said that he would “get’-’ the appellant; that he had learned that Williams bore the reputation of a violent and dangerous man, and in the previous difficulty he attempted to cut the appellant with a knife. When Williams came to where the appellant was at work, he, without saying anything, “made a quick move towards his pocket.” Appellant said: “And so I just shot him then.”

There was evidence that the appellant bore a good reputation as a peaceable and law-abiding man. State witnesses other than Williams testified that Williams spoke to the appellant; that, without making any reply, the appellant caught Williams in the collar with one hand and shot him with the other.

The court submitted the issues of assault to murder and aggravated assault; also, the law of threats and self-defense. No complaint was made at the time of the trial as to the manner of the submission of these issues. No bill of exceptions is found in the record complaining of any ruling of the court on the introduction of evidence or its exclusion.

There is a reference in the motion for new trial to the absence of W. O. Ellis, who, we gather from the record, was an eyewitness. We fail to perceive any compliance with the law making the testimony of 'Ellis available as newly discovered evidence. No sufficient reason is given for not ascertaining from Ellis his knowledge of the transaction antecedent to the trial. Moreover, the purported testimony- of Ellis is in the main cumulative.

The motion also adverts to some testimony which the'appellant’s wife would have given if present. However, the essential ele- meats of diligence to render it available as newly discovered evidence is lacking.

The evidence appears sufficient, and we fail to find any error in the record which warrants a reversal of the judgment.

It is therefore affirmed. 
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