
    WILSON v. STATE.
    (Court of Criminal Appeals of Texas.
    May 31, 1911.
    On Motion for Rehearing, June 23, 1911.)
    1. Cbiminal Law (§ 1043) — Objections to Evidence — Sufficiency.
    An- objection to testimony as being irrelevant and prejudicial is too general to be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2654, 2655; Dec. Dig. § 1043.]
    2. Criminal Law (§ 369) — Assault to Murder-Evidence oe Other Offense — Admissibility.
    Where, in a trial for assault to murder, it appeared that the injured person’s brother lost a hat, and, being informed that accused’s brother had it, the injured person went to him to recover it, when the difficulty arose, testimony that the morning after the difficulty witness found- a hat identified as the one taken near the place of the difficulty was not objectionable as tending to connect accused with theft of the hat, a different offense than that for which he was being tried, where there was pothing in the record to show that he was accused of theft.
    [Ed. Note. — Eor other cases, see. Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.J
    3. Criminal Law (§ 1052) — Order Dentins Continuance — Exception—Necessity.
    Denial of a continuance will not be reviewed-where it was not excepted to.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2659; Dec. Dig. § 1052.]
    4. Criminal Law (§ 829) — Instructions— Refusal — Matter Covered.
    Instructions are properly refused, where the substance thereof is covered by those given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    
      5. Criminal Law (§ 939) — New Trial— Newly Discovered Evidence — Diligence.
    A new trial, asked on account of newly discovered evidence, is properly denied accused, where he had six months in which to procure his witnesses and by using diligence could have discovered the evidence before the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2318-2323; Dec. Dig. § 939.]
    On Motion for Rehearing.
    6. Homicide (§ 160) — Assault to Murder-Evidence — Admissibility.
    In a trial for assault to murder, where it appeared that, before going to the place of the difficulty, accused exhibited a razor, and stated that if any one bothered him at the jfiace where he was going he would use it, testimony that the next morning witness found a razor near the place of the difficulty was not inadmissible on the theory of insufficient identification of the razor; it having been identified by another witness as one like the razor exhibited by accused.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 301; Dec. Dig. § 160.]
    Appeal from District Court, Gonzales County; M. Kennon, Judge.
    Willie Wilson was convicted of assault to murder, and- he appeals.
    Affirmed.
    Romberg & Duncan, for. appellant.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted, charged with the offense of assault to murder. Upon a trial he was convicted, and sentenced to five years confinement in the penitentiary.

1. Appellant, in hill of exception No. 1, complains that the court admitted the testimony of D. B. Beck, who testified that, the morning after appellant was charged with cutting Claud Bouldin, he found a razor closed up in a box near the depot at Harwood. It appears that appellant had gone on the train from Harwood to Waelder; that just before taking the train at Harwood he had shown to Bill Jones a razor in a black box, saying that the people at Waelder had been running over him, and he was fixed for them. He came 'back that night on the train, and the razor found by D. B. Beck near the depot and near the place where appellant was arrested that night was in a box like the box shown Mr. Jones, and he testified that it had the same kind of handle and looked like the razor shown him by appellant the day before, just before taking the train at Harwood for Waelder, where appellant cut Claud Bouldin with some kind of a sharp-instrument. The objection urged, -that “the testimony was irrelevant and prejudicial,” was too general, and the court did not err in admitting the testimony. McGrath v. State, 35 Tex. Cr. R. 427, 34 S. W. 127, 941; Carter v. State, 37 Tex. Cr. R. 403, 35 S. W. 378; Miller v. State, 36 Tex. Cr. R. 47, 35 S. W. 391.

2. The only other bill of exception in in the record complains that the court erred in admitting the testimony of J. E. Conrad, who testified that, the' morning after the difficulty in which appellant cut Olaud Bouldin, he found a hat near the depot which was identified as that of Guy Bouldin. The objection urged was that the testimony was “irrelevant, prejudicial, and tended to connect the defendant with the theft of a hat, which was a different offense from that for which he was being prosecuted.” The testimony in the case shows that on the night of the difficulty Guy Bouldin lost a hat. He was informed that a brother of appellant had been seen with the hat going to the depot. The injured party went to the brother of appellant and asked him what he had done with the hat of his brother Guy. From this conversation the difficulty arose. There is nothing in the record to suggest that any one ever accused appellant of taking the hat, therefore that part of the objection, that it “tended to connect defendant with the theft of the hat,” is not suggested by the evidence, and the objections that it is “irrelevant and prejudicial” is too general to 'be considered. In addition to this, it is shown that the court withdrew this testimony, in that he charged the jury at the request of appellant: “The defendant is on trial for the- offense charged in the indictment. If there has been any testimony admitted before you tending to show that the defendant or his brother took Boul-din’s hat, you are instructed not to consider such testimony on the question of the guilt or innocence of the defendant.”

3. There is in the record a motion for a continuance, on the ground that the attorney whom appellant first employed was in jail and unable to attend 'to the case, and that the attorneys who represented him on the trial had insufficient time. No exception was reserved to the action of the court in overruling this motion. Therefore we cannot consider it. Trevino v. State, 38 Tex. Cr. R. 64, 41 S. W. 608; Kelly v. State, 36 Tex. Cr. R. 480, 38 S. W. 39; Blackshire v. State, 33 Tex. Cr. R. 160, 25 S. W. 771.

4. There was no error in refusing the special charges requested, as they were in substance incorporated in the charge of the court, and the court’s charge on self-defense presented defendant’s theory more favorably than did the requested charges.

5. The only other ground in the motion is based on newly discovered evidence. Defendant was indicted on July 8, 1910; the case was not called for trial until January 11, 1911. None of the witnesses, except William Smith, claim to have been present at the time of the difficulty, and this witness does not testify to any fact that would justify appellant in seeking to take the life of Claud Bouldin. Appellant went to trial on the testimony of his brother, and another witness, and did not issue process for any other witnesses. He was present at the dance where the difficulty took place, knew who was present, and, if he had used any diligence during the six months elapsing from the time he was arrested until his trial, he could have learned of the circumstances and the names of the witnesses on which he now seeks a new trial. A person cannot sit still and wait until he is convicted, and then secure a new trial on isolated circumstances, when he does not show that he sought in some way to develop the facts in his case before trial, when he had ample time. It seems , strange that he could not learn of these circumstances for six months prior to this trial, but could discover them within a day or so subsequent to a trial and conviction. Trials are expensive and occupy the time of the court, and one who seeks a new trial, on account of newly discovered evidence must show that he used due diligence to prepare his case for trial, and that the evidence claimed to be newly discovered must be such that it would probably result in a different verdict, and that it was through no negligence of his own that he did not discover and present the evidence on his trial. If the evidence alleged to have been newly discovered had been introduced on the trial, we do not think it could or would have resulted in a different verdict being returned by the jury.

The judgment is affirmed.

On Motion for Rehearing.

At a former day of this term this case was affirmed, and appellant had filed a motion for a rehearing, insisting that the testimony of the witness Beck, who testified: “I came down to my shop early on the morning of the 18th of June, 1910. On my way to the shop, I found a razor, about 250 yards east of the depot in the middle of the road. I turned the razor over to Jeff Tomlinson, the constable, who has since died. The razor here shown me is the razor I found. It had the gap in it that is shown in it now. When I found it, it was closed up and in the box that it is now in. It had no blood on it. The blade is about four inches long, the handle six inches, and it is a deadly weapon” —was inadmissible, because it “was not identified as the instrument with which defendant cut Claud Bouldin.” The testimony we think was admissible.

The injured party testified: “Defendant cut me with what I took to be a razor.”

Guy Bouldin testified: “Defendant jumped towards my brother, and said, T will cut your damn head off,’ at the same time cutting him twice, with what I took to be a razor. I saw him take something out of his coat pocket which looked like a razor box, and open it, and take out of the box what I took to be a razor, and close the box and put it in his pocket.”

Grover Porter testified: “I saw defendant pull something out of his pocket which I took to be a razor, and jump towards Claud Bouldin and cut him twice.”

Bill Jones testified: “On the 17th day of June, 1910, I think in the afternoon, the defendant, Willie Wilson, came to my shop. While there he told me he was going to Har-wood that night, and asked me to go with him. I refused. 1-Ie said people had been running over him at places, and that if they tried it in Harwood he was fixed for them. 1-Ie took out a razor box and handed it to me. X opened and saw a razor. It lad a black handle and was in a black box. He told me that if any one bothered him in Harwood be would cut the ass off them. The razor 'shown me now looks like the one Wilson had, except I never saw that big gap in it, and I never saw that white in the handle.”

It was shown that, after exhibiting the razor to Jones, defendant took the train and went to Harwood, where he cut Bouldin. After the difficulty, he returned to Waelder, and got off the train at the depot near the place where the razo'r was found 'by Beck. The circumstances all indicate it was the instrument with which he cut Bouldin. It was admissible under the evidence in the case' as a circumstance' to be weighed by the jury.

This being the only ground assigned, the motion for a rehearing is overruled.  