
    TAYLOR v. STATE.
    (No. 3169.)
    (Court of Criminal Appeals of Texas.
    June 17, 1914.
    Rehearing Denied Oct. 14, 1914.)
    1. Homicide (§ 313)—Verdict— Sufficiency.
    A verdict in a homicide case, wherein the court instructed that there was no murder of the first degree in the ease, and submitted only murder on implied malice, need not state the degree of murder of which the jury find the defendant guilty.
    [Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 671-675; Dec. Dig. § 313.]
    2. Witnesses (§ 268)—Cross-examination-Hearsay.
    Where counsel for defendant in a homicide case elicited from a witness on cross-examination a partial answer to a question as to why he did not have defendant arrested on learning that he had stolen his hog, the court properly permitted the witness to state his reason in full, though this included advice given him by a third person.
    [Ed. Note.—For other eases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.]
    3. Criminal Law (§ 1038)—Appeal.
    Objections to the charge, which are first made after verdict in the amended motion for new trial, cannot be considered on appeal in a criminal case.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    4. Criminal Law (§ 1156)—Appeal—Discretionary Ruling — Refusal of New Trial.
    The denial of a new trial sought in a criminal case for newly discovered evidence, impeaching in nature, will not be disturbed on appeal, in the absence of an abuse of discretion.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3067-3071; Dec. Dig. § 1156.]
    Appeal from District Court, Liberty County; L. B. Hightower, Judge.
    Gilbert Taylor was convicted of murder, and appeals.
    Affirmed.
    E. T. Branch, of Houston, and Stevens & Stevens, of Liberty, .for appellant. C. E. Lane, Asst Atty. Gen., for the State.
    
      
       For other oases see same topic and section NUMBER, in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of murder, and his punishment assessed at 20 years’ confinement in the state penitentiary.

Appellant was convicted of hilling Ova Nugent. Alfred Nugent was a material witness for the state, and had testified to recognizing the voice of appellant when they first rode up to his house that night; that after two shots had been fired, he went out of the house and saw and recognized appellant, who then shot at him.

The theory of the state was that appellant went to Nugent’s house that night to kill the father, Alfred Nugent, and the shot, was fired with that intent, consequently there is no murder of the first degree in the case, and the court so instructed the jury, and submitted only murder upon implied malice. Under such circumstances it was not necessary for the jury to state in their verdict the degree of murder of which they found appellant guilty.

Alfred Nugent having testified that he had been informed that appellant had stolen one of his hogs, he went to appellant’s place and saw one of his hogs in appellant’s potato patch; that he knew the hog; that appellant saw him looking at the hog, and after he satisfied himself that it was his hog, he returned home, going by Orillian Fruger’s. This is as far as the state went into the matter of hog stealing, when on cross-examination the following proceedings were had: Appellant, after making some inquiries in regard to the identification of the hog, and his testimony at the examining trial in an effort to show that the testimony was not true, asked the witness: “Why didn’t you go then, after you saw your hog, and have him [defendant] arrested?” To which the witness replied that he was going to have defendant arrested that night, but that Orillian Fruger told him just to stop this—at this point the defendant objected to the witness stating what Orillian Fruger had said, and over his objection, the court permitted the Witness to say that his reason for not having appellant arrested for the theft of the hog that evening was that Orillian Fruger had requested him not to do so, saying:

“He is a brother-in-law of mine, and he just got out of one scrape and don’t put him in another; that he would go and see appellant and have him pay for the hog; that if witness would give him, Fruger, until the next day he would fix it up.”

As appellant pursued the line of inquiry he did on" cross-examination, and having propounded the interrogatory desiring to know the reason why he had not had appellant arrested and elicited a part of the answer, it was proper for the court to permit the witness to state his reason in full. Of course it would not have been admissible in behalf of the state as original testimony, but when the defendant took him on cross-examination and went into this matter of his own volition, then it was permissible for the court to permit the witness to give a full answer to the question propounded. The state elicited no part of the testimony objected to, but only insisted that as appellant had propounded the interrogatory and elicited from the witness a part of the answer, it was but fair to the witness to let him finish his answer to the question, and the court so held.

This case was tried last February. At the time the charge was submitted to appellant’s counsel no objections were made thereto in any respect. In the amended motion for a new trial, however, he assigns several errors as to the charge. Under the law as passed by the last Legislature, we cannot consider such complaints, having been made for the first time after the verdict, in the amended motion for new trial.

The only other complaint is that the court erred in not granting a new trial on account of newly discovered evidence. This testimony would be of an impeaching nature only if true, and as the state contested the motion and introduced evidence thereon, the court, after hearing the evidence in regard thereto found against appellant and overruled the motion. We cannot hold that he abused his discretion in so doing.

The judgment is affirmed.  