
    WADKINS v. STATE.
    (No. 9564.)
    (Court of Criminal Appeals of Texas.
    Nov. 25, 1925.)
    Criminal law <&wkey;942(2) — Refusal of new trial held error, where affidavit of state’s witness recanting testimony was uncontroverted.
    Refusal of new trial, after conviction of 'simple assault, held error, where affidavit of state’s witness, recanting his testimony that defendant had offered money for favorable testimony, and showing that affiant did not know that he was under oath and did not understand meaning of oath, was uncontroverted.
    Commissioners’ Decision.
    Appeal from Denton County Court; Brent C. Jackson, Judge.
    S. E. Wadkins was convicted of simple assault, and he appeals.
    Reversed and remanded.
    E. I. Key, of Denton, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is simple assault; the punishment is a fine of $25.

The record in the case is very voluminous, and the facts are rather unique. The state’s testimony shows that the defendant, his son, and one Vanderslice, met the alleged injured party; that the son had a double-barreled shotgun, Vanderslice an axe, and the defendant five squirrels; that the alleged injured party had also been hunting and. had a double-barreled shotgun and two birds; that the appellant cursed the alleged injured party as did Vanderslice, and that Vanderslice raised the axe and started toward him, when the prosecuting witness drew his gun' on Vanderslice and told him to stop, and he did stop and walked away and nothing else happened. Appellant’s theory was that the state’s witness’ statement of the case was false, and that nothing more than some dispute about a place on which the prosecuting witness’ son was living occurred, and that, because of this, the prosecuting witness cursed the appellant and his son and drew a gun on them.

There is but one question that we desire to diScuss, as the other matters presented may not occur in the same form in the event of another trial. On the trial of the ease, the state introduced the witness Troy Haney, who lived in the south part of Denton county, and who testified that he saw the defendant in Roanoke the week before the trial and talked to him and His son, and that appellant told him he was looking for witnesses to testify in the case that Holman (the prosecuting witness) had filed against him, and that said witness told appellant he knew nothing about it, and that appellant told him he would pay $5 a day for witnesses, that he would pay $5 a day for 3 days, and that he told him he would give hijn $5 a day for 3 days to testify for him in these eases. On the motion for a new trial, appellant offered the affidavit of this witness, in which he swears that, after thinking the matter over concerning the testimony he had given on the trial, he was mistaken in swearing as he did, and that appellant did not make any such proposition, and that (he was mistaken and should not have sworn as he did, as the appellant did not make such a proposition as he had testified to on the trial of the case. Said affidavit further shows that the witness claimed he did not know the meaning of an oath, and did not .know at the time he was testifying that he was under oath, and that he did not know what swearing a witness meant. He further states in the affidavit that he wants to make this affidavit to straighten up the matter as he now sees he has done the appellant a wrong. We fail to find in the record any contest filed by the state as to the motion for a new trial, and the order overruling said motion fails to show that any evidence was heard thereon. Under this condition of the record a new trial ought to have been granted. The testimony given by the witness Haney on the trial of the case was certainly calculated to be very harmful in its effect. The jury assessed the maximum penalty for simple assault, and we are not in a position to say that this result was not in part reached because of the testimony given by the witness Haney, which testimony he later averred in his affidavit to he false.

Por the court’s error in refusing a new trial, the judgment is reversed, and the cause remanded.

PER CURIAM.

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. 
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