
    LEWIS v. STATE.
    (No. 4723.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1917.
    Rehearing Denied Jan. 16, 1918.)
    1. Criminal Law <§=>1124(4) — Appeai—Rec-ord — New Trial.
    Unless the evidence heard upon motion for new trial is preserved and filed with the appellate court, it cannot be passed upon, and the action of the trial judge in overruling the motion must be upheld.
    2. Criminal Law <§=>938(2) — Newly Discovered Evidence — Interviewing and Examining Witnesses.
    Testimony of a witness who heard the testimony of deceased’s wife at the examining trial, with which it is desired to impeach such wife’s testimony given at the regular trial, is not newly discovered evidence, warranting new trial, where defendant and his attorney wese not only present at the examining trial, but introduced such evidence as there given, in the regular trial, at which such witness under subpoena was also in attendance.
    3. Criminal Law <§=>942(1) — New Trial — Newly Discovered Evidence.
    A new trial will not be granted upon newly discovered evidence which would go solely to-wárd impeaching a witness.
    4. Criminal Law <§=>1156(3) — Review—New Trial — Newly Discovered Evidence.
    The question of granting a new trial on the ground of newly discovered evidence is largely left to the discretion of the trial judge, and will not be disturbed, except where appellant shows that the court abused its discretion.
    Appeal from District Court, Ellis County; P. L. Hawkins, Judge.
    Ike Lewis was convicted of murder, and he appeals.
    Affirmed.
    Tom AVhipple, of AA^axahachie, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of murder, and assessed the lowest punishment.

The sole question is whether or not the court erred in refusing a new trial on the grounds of claimed newly discovered testimony. This claimed newly discovered testimony was that of Officer G. T. Miller to the effect that he was present at the examining trial of appellant and heard the wife of deceased testify therein; that upon being asked where her two grandsons- were when the shooting started, she replied that they were in the room where she was, and that when the shooting started they both ran out of the back door into the back yard, and that she did not know where they went.

The judgment of the court shows that in acting upon appellant’s motion for new trial the judge heard the evidence, and then overruled the motion. What that evidence was is in no way disclosed by the record herein. Doubtless it was amply sufficient of and within itself to show that the court’s action in overruling the motion was correct. It has all the time been held by this court that, where the record shows that the court heard evidence in ruling upon such motions as this, it is incumbent upon the appellant to preserve that evidence and have it filed during term time in order to authorize this court to pass upon whether the court’s action was correct or not. As none of the testimony so heard by the judge is in any way made to appear in this record, this of itself would clearly require this court to hold that the action of the lower court in overruling his' motion for new trial was correct. Eor the cases on this point see Guerra v. State, 189 S. W. 953; Ethridge v. State, 74 Tex. Cr. R. 638,169 S. W. 1152; Graham v. State, 73 Tex. Cr. R. 34, 163 S. W. 726; and many other cases.

The law on the subject of newly discovered testimony is so well settled that it needs no discussion or citation specially to the authorities now. Even if we could consider this ground without knowing what the testimony was which the judge heard, the record clearly shows that one of appellant’s attorneys who tried this case was present and represented appellant in said examining trial. Of course, the appellant himself also was then present, and if deceased’s wife gave any such testimony therein as claimed, they both must have heard and known of it at the time; so that as a matter of fact it could not have been newly discovered testimony. Dobson v. State, 65 Tex. Cr. R. 639, 146 S. W. 546. Moreover, said Miller was subpoenaed and attended this trial as a witness. Powell v. State, 36 Tex. Cr. R. 377, 37 S. W. 322; Halliburton v. State, 34 Tex. Cr. R. 410, 31 S. W. 297; Williams v. State, 45 S. W. 572. In addition appellant produced and introduced on this trial the whole of the testimony of deceased’s wife given on said examining trial. Again, the purported newly discovered testimony, even if it could be held to be such, would go solely to the impeachment or contradiction of deceased’s wife. Wormley v. State, 65 Tex. Cr. R. 49, 143 S. W. 615, and cases there cited. And again the question of granting a new trial on this ground is left largely to the discretion of the trial.judge. At least this court will not reverse unless appellant shows that the trial court abused its discretion in not granting the new trial. Gray v. State, 65 Tex. Cr. R. 206, 144 S. W. 283, and cases cited.

Eor all of these reasons the action of the court in denying the new trial does not show any error. The rules regarding this subject and the authorities are stated by Judge White in his Ann. O. C. P. § 1149, and cases there cited, and in 1 Branch’s Ann. P. C., §§ 192-205, and it is unnecessary to now state or discuss them.

The judgment is affirmed. 
      (§=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     