
    McGOWEN v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1914.
    Rehearing Denied March 25, 1914.)
    1. Homicide (§ 338) — Evidence—Prejudice.
    Where the difficulty between defendant and deceased grew out of a prior difficulty which engendered ill feeling between the parties, defendant was not prejudiced by the introduction of evidence as to the origin of the unfriendly relations which tended to show that defendant had cause for ill will against deceased.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 709-713; Dec. Dig. § 338.] ,
    2. Criminad Law (§ 1171) — Triad^District Attorney — Misconduct.
    Misconduct of a district attorney in making disparaging remarks in regard to a member of the Court of Criminal Appeals in his closing address was not prejudicial to accused or ground for reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    3. Criminad Law (§ 1090) — Matters Review abde — Bidd oe Exceptions — Necessity.
    Matters complained of in a motion for a new trial, to which no bill of exceptions was reserved, cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §8 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    4.Criminad Law (§ 936) — New Triad — Surprise.
    Accused was not entitled to a new trial because of surprise by the testimony of a witness whose name was indorsed on the indictment as a witness for the state, especially where no claim of surprise or motion to postpone was made at the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2299-2305; Dec. Dig. § 936.]
    5.Criminad Law (§ 939) — New Triad — New-dy Discovered Evidence — Diligence.
    Defendant was not entitled to a new trial because of alleged newly discovered evidence 'of a witness whom he knew was present at the homicide, and whom he desired to use to impeach the testimony for the state, since ordinary diligence would have produced the witness at the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2318-2323; Dec. Dig. § 939.] ■
    6. Criminad Law (§ 829) — Triad—Request oe Charge.
    Where instructions given by the court on the question of self-defense aptly presented that issue as made by the testimony, it was not error to refuse other special charges requested on the same question.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 2011; Dee. Dig. § 829.]
    7. Homicide (§ 282) — Murder on Impdied Madice — Evidence.
    In ■ a prosecution for homicide, evidence viewed from the state’s standpoint held, to justify submission of murder on implied malice.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 574; Dec. Dig. § 282.]
    Appeal from District Court, San Jacinto County; L. B. Hightower, Judge.
    Jim McGowen was convicted of murdering on implied malice, and he appeals.
    Affirmed.
    F. O. Fuller and Wm. MeMurrey, both of Cold Springs, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec.'Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was found guilty of murder upon implied malice, and his punishment assessed at seven years’ confinement in the state penitentiary.

The deceased, appellant, and a number of others had been to Cold Springs the day of the homicide. It appears that Willis Mc-Gowen had been indicted charged with the murder of deceased’s brother. On the way home a difficulty arose between Jack Harrison and George McGowen. The state’s contention is that Willis McGowen waited up to the scene of the difficulty, drawing a pistol, uttering threats, etc., and was shot while so doing, when appellant rushed to him, took his pistol out of his hands, ran after Tom Grace, and shot him. Appellant, on the other hand, would have Willis McGowen and appellant acting as peacemakers between Jack Harrison and George McGowen when Willis Mc-Gowen was shot by Tom Grace, and that Grace, after shooting Willis McGowen, circled around, looking back as if intending to shoot again, when appellant got a pistol out of the bosom of Willis McGowen and shot Tom Grace. Testimony was admitted that Willis McGowen was charged with the murder of Tom Grace’s half-brother, upon the promise of the state to show that Tom Grace was a witness for the state in that case, to show motive, etc., for his killing on this occasion. The state failed to make this proof when the testimony was withdrawn. The court, in approving one of the bills of exception relating to this matter, states: “Allowed with the following qualifications: When the district attorney offered this testimony, he proposed to follow it up and show that Tom Grace was a witness in the ease against Willis McGowen (brother of defendant); but, when the district attorney examined the record of that case against Willis McGowen, he found that Tom Grace was not a witness in that case. And the district attorney asked the court to withdraw all the testimony introduced in reference to that case, which the court did, and after that, and immediately after the court withdrew that evidence from the consideration of the jury, the defendant’s counsel introduced the entire record of that case (State v. Willis McGowen) to show that Tom Grace was not a witness in that ease. Mr. Manry, the district attorney, had already stated to the court in the hearing of the jury that he was mistaken when he said that Tom Grace was a witness against Willis McGowen, and in presence of the jury asked the court to withdraw all the testimony in reference thereto.” No testimony was admitted as to whether Willis McGowen was or was not justifiable in killing John Harrison, if he did do so. None of the details of that transaction were admitted, but merely the fact that “Willis McGowen was charged with having killed John Harrison, who was a half-brother of Tom Grace, and he was over here that day, and that was the day Willis McGowen’s case was to be called, and after it had been continued we all started home.”

There can be but little doubt from this record that the difficulty between Jack Harrison and Jim McGowen grew out of the ill will existing between the two families growing out of the killing of John Harrison, that, if the deceased (Tom Grace) did' kill Willis McGowen on this occasion, he did so out of feeling growing out of the killing of John Harrison by Willis McGowen; and, in whatever light we view this transaction, the original cause of ill will, and the promptness of all parties to act, all had its origin and inception, in part at least, out of the first killing, and a jury could not intelligently pass on the respective acts of the parties on this occasion without knowing the origin of the unfriendly relations, and, while the court withdrew the testimony from the jury at the request of appellant, yet we are of the opinion that the fact that Willis McGowen was charged with killing Grace’s half-brother would furnish a reason for the killing of Willis McGowen by Tom Grace as contended by appellant, and such testimony could not and would not be hurtful to this appellant, who contends that, when Grace shot his brother Willis on this occasion, and was circling around as if seeking another opportunity to shoot,.he got the pistol from Willis and fired at Grace. Certainly the action of the court presents no reversible error in the light of the following special charge given at appellant’s request: “Gentlemen of the jury, you are further charged that, if you find beyond a reasonable doubt that if, at the time the defendant, Jim McGowen, fired the fatal shot, if he so fired it, it reasonably appeared to him from the circumstances of the case, viewed from his standpoint, that the deceased was about to shoot him or his brother, Willis McGowen, he was justified in killing deceased, although in fact you, the jury, might believe from the evidence that defendant was in no danger at. the time of being shot by deceased.”

Bills of exception Nos. 3 and 4 were refused by the court, and we do not know why they are copied in the record.

Bill of exception No. S asserts.that the district attorney, in his closing address, made disparaging remarks in regard to a member of this court. If this was done, of course this-was highly improper; but the judge, in approving the bill, adopts the denial of the district attorney, who says he used no such language. Attorney for appellant attaches his affidavit asserting as a fact that such remarks were used; but he does not prove up the bill in compliance with the statute. Without passing on the merits of this controversy, we will content ourselves by saying that such remarks, if used, were entirely out of place; but they could not and would not affect the jury in passing on the guilt or innocence of appellant, and under such circumstances the bill, if properly proven up, would present no reversible error.

There are several matters complained of in the motion for a new trial to which no bill of exceptions was reserved, and of course we cannot review these matters.

The alleged newly discovered testimony does not come within the rules prescribed for the granting of new trials on account thereof. The indictment in this case had the names of Adeline Stanley and Beach Stanley indorsed thereon as witnesses for the state, eonse-quently appellant was charged with notice that they would be used as witnesses, consequently he cannot claim surprise as to their testimony; and, if he was surprised by it, he should then have made his motion to postpone, and not wait until verdict was rendered.

If Lou Curtis was present at the time of the homicide, as contended in the motion for new trial and affidavit, appellant was aware of that fact as well .before as subsequent to the trial, and, knowing that Beach and Adeline Stanley would be witnesses in the case, the exercise of ordinary diligence would have discovered before trial the testimony of the witness Lou Curtis, a witness who is now desired to impeach the two Stan-leys. Judge White, in his annotated procedure, lays down the following five rules essential to granting a new trial on account of newly discovered testimony: First, that the evidence came to his knowledge since the trial; second, that it was not owing to want of due diligence that it was not discovered before the trial; third, that it was material evidence, and. not merely cumulative, corroborative, or collateral; fourth, that it will probably produce a different result; fifth, that it is not simply for the purpose of impeaching a state’s witness; that, if the application is defective in establishing any one of these essentials, a new trial is correctly refused—citing a-long list of authorities in section 1Í49 of his annotated procedure.

In addition to the hereinbefore copied special charge, the court, on the issue of self-defense, instructed the jury: “A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant. And a party would have the same right to protect his brother from unlawful violence as he has to protect his own person from such violence, and the same rules announced above would obtain in his behalf. If, from the evidence, you believe the defendant killed the said Tom Grace, but further believe that at the time of so doing the deceased, by his acts (if any), or his acts coupled with his words (if any), caused him to have a reasonable expectation'or fear that the deceased Tom Grace was about to shoot Willis McGowen again (if he did shoot him at all), or was about to shoot him, the defendant, and that, acting under such reasonable expectation or fear, the defendant killed deceased, then you should acquit the defendant, and say by your verdict ‘Not guilty.’ ”

This aptly presented this issue as made by the testimony, and there was no error in refusing the other special charges requested on self-defense.

Appellant contends that the court erred in submitting the issue of murder in the second degree, ably contending that, if the evidence would justify a finding that appellant was guilty of unlawful homicide, yet it would be of no higher degree than manslaughter. We have carefully studied the evidence, and, from the state’s standpoint, we think it raised the issue of murder upon implied malice, and the court did not err in submitting that issue, and the evidence sustains the verdict.

The judgment is affirmed.  