
    George Washington v. The State.
    
      No. 1195.
    
    
      Decided October 30th, 1895.
    
    I. Plea of Former Conviction—Sufficiency of.
    A plea of former conviction, to be sufficient, must contain the indictment, verdict and judgment on the former trial.
    S. Continuance.
    Where the defendant was arrested three' days after the crime was committed, but was not brought to trial for a year thereafter, his application for continuance, to be sufficient, should show whether it was a first or subsequent application.
    3. New Trial—Newly Discovered Evidence.
    A motion for new trial for newly discovered evidence, will be properly refused where it is shown that the testimony should and could have been discovered by the least degree of diligence. G
    4. Same.
    i”A motion for new trial is properly refused for newly! discovered evidence which is merely cumulative of that adduced at the trial.
    Appeal from the District Court of Bowie. Tried below before Hon.
    J. L. Sheppard.
    This appeal is from a conviction for assault to murder, the punishment being assessed at two years’ imprisonment in the penitentiary.
    This is a companion case to Washington v. State, ante p. 154.
    The indictment charges an assault with intent to murder one Jim Edwards. During the rencounter, defendant shot at Edwards and missed him, and killed one Black. He had been tried and convicted for the murder of Black, and given five years in the penitentiary. When this case was called for trial, he pleaded former - conviction in the case for the murder of Black as a bar to this prosecution. The State demurred to said plea for insufficiency, and the demurrer was sustained and the plea stricken out.
    No further statement required.
    No briefs for either party have come to the hands of the Reporter.
    
      Mann Trice, Assistant Attorney-General, for the State.
   HURT, Presiding Judge.

Appellant was convicted of assault with intent to murder, and given two years’ confinement in the penitentiary, from which conviction he prosecutes this appeal. It appears from the record that appellant shot at one Edwards, missed him, and killed one Black. Appellant was tried and convicted of the murder of Black. He was then placed on trial under this indictment for an assault with intent to kill and murder Edwards. He attempted to plead in bar of this prosecution the judgment of conviction for the murder of Black. If the plea had been in proper form, containing what the law requires, it would have been a good plea in. bar to the prosecution for this assault to murder, because everything that was done by the defendant, all of the unlawful intents and purposes which went to make up a case of assault to murder, were utilized in the murder case. The State excepted to the sufficiency of the plea, and the court sustained the exception. It is well settled that a plea of former conviction or acquittal must contain the indictment, the verdict of the jury, and the judgment of the court. This record does not contain the indictment, nor the conviction and judgment, and there was no error in sustaining the demurrer to the plea. When sustained by the court, the record contains no application or request to amend or prepare and file a good plea. This record, as above stated, does not contain in any part thereof the indictment nor the judgment in the murder case, and we cannot determine from this record whether the conviction was had upon a valid indictment, or whether j udgment was ever rendered upon that conviction. The application to continue was made by the appellant and overruled, and he excepted, reserving his bill of exceptions. The indictment in this case was filed in March, 1894. The assault was charged to have been committed on the 13th day of March, same year. The case was called for trial March 20, 1895. Three days after the shooting, appellant was arrested. This application fails to show whether it ivas the first or a subsequent application. In the condition in which we find this record, this was necessary. This being the ease, we are of the opinion that there was no error in overruling the application. Quite a number of persons were present at the shooting, it occurring at a dance. By the absent witnesses appellant proposed to prove that Edwards, the prosecutor, not only had a pistol, but was attempting to use it. It is strange, indeed, if this be so, that Edwards did not use his pistol. He Avas shot at five times, and made no effort to use it, except, as testified by appellant, placing his hand upon it, AV'hen there Avas nothing whatever to prevent his using it in the. most deadly manner. If Edivards in fact had a pistol,—Avhich is very doubtful, under the circumstances of this case,—he would have certainly shot the defendant, or shot at him, but no Avitness ever gets the pistol out of his pocket. We are of the opinion that no intelligent and honest jury would ever believe from the evidence of this case that Edivards had a pistol. Again, the diligence in this case was not sufficient. See opinion in cause No. 1,196 just decided, Washington v. State, ante p. 154, from Bowie County. Appellant moved for a new trial on the ground of neAvly discovered evidence, and attaches in support thereof the affidavit of Mollie Gant. This woman, by affidavit, swears that after Edwards fell, being wounded by one of the shots from appellant’s pistol, she saw a pistol in his pocket, and that it was taken from his person by one Gray. Mollie Gant was a witness in attendance upon the court. The case against appellant for the murder of Black had been tried a few days before this trial. The nature of this case rendered it of the first importance to ascertain Avhether Edwards had a pistol or not. That was a very material issue in the case. It was very natural that counsel for the appellant should have questioned the woman, Gant, as to this fact. They of course knew the necessity of such proof. The circumstances demanded that they question her in regard to whether Edwards had a pis. tol or not, and the least degree of diligence would have, if this be true, secured this testimony. We think there was a great want of diligence in regard to this matter, and there was no error in overruling motion for a new trial. In addition to this, a witness other than appellant or his brother swore that he saw the pistol. This newly discovered testimony is therefore cumulative. The evidence of this case establishes the guilt of appellant beyond any question. The judgment is affirmed.

Affirmed. -  