
    STEPHENS v. STATE.
    (No. 10086.)
    (Court of Criminal Appeals of Texas.
    April 21, 1926.
    Rehearing Denied Nov. 3, 1926.)
    I. Ho/hioide <@=>300(12) — Instruction on self-defense held not erroneous as failing to show joint assault or action of deceased and his brother.
    In prosecution for murder, where defendant pleaded self-defense in killing O., while threatened by O. and his brother "W., instruction to acquit if defendant believed that “O. and W., or either,” were about to carry threat into ef-feet held, not erroneous as failing to show joint assault or action of both.
    2. Criminal law <@=392 — Refusal to admit sub-prena near close of 3-day murder trial held proper as immaterial.
    Refusal to admit subpoena offered in evidence near close of 3-day murder trial, no application for continuance having been made and no testimony offered to show sickness of absent witness, held proper, subpoena not tending to prove ..anything material.
    3. Criminal law <@=945(0— Motion for new trial in murder case for newly discovered evidence, not showing such evidence might cause different result on another trial, held insufficient.
    Motion for new trial in murder case because of newly discovered evidence, where neither motion nor .attached affidavit showed that newly discovered evidence might cause a different result on another trial, held insufficient.
    Commissioners’ Decision.
    Appeal from District Court, Nolan County ; W. P. Leslie, Judge.
    Dan Stephens, was convicted of murder, and he appeals.
    Affirmed.
    L. B. Allen, of Roby, Beall & Beall, of Sweetwater, and J. F. Cunningham, of Abilene, for appellant.
    Sam. D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for tbe State.
   BERRY, J.

The offense is murder and the punishment is eight years in the penitentiary.

The state’s testimony shows that the deceased was killed by the appellant under circumstances showing malice. The appellant defended on the ground of self-defense and introduced testimony tending to show that the appellant believed that the deceased had raped the daughter of the appellant. There was testimony in the record which, if true, was sufficient to show that deceased and appellant had met since appellant had been informed of the alleged rape and prior to the time of the fatal shooting. The deceased was in company with his brother at the time he was killed.

Appellant complains of the following portion of the court’s charge:

“You are therefore charged that if you find and believe from the evidence any such threats or threat were made, or threats, as testified to by the witnesses on the "stand in this case, were communicated to the defendant, whether they were, in fact, made or not, and you further believe at the time the defendant killed, the deceased, Otho Martin, if he did, that it reasonably appeared to tbe defendant at the time from the acts’ or words, if any, of the said Otho Martin and "Wiley Martin, or either, or from some act then done by the said Otho Martin and Wiley Martin, or either, that he, the said Otho Martin and Wiley Martin, or either, was about to carry out the threat or threats so made, if any, or if you have a reasonable doubt thereof, then, in that event, you will find the defendant, Dan Stephens, not guilty.”

Appellant objected to this charge on the ground that it does not submit the acts or conduct of deceased and his brother. It will be observed from the above charge that* the court instructed the jury, in effect, that, if they believed at the time the defendant killed the deceased, Otho Martin, if he did, that it reasonably appeared to the defendant at the time from the acts or words, if any, of the said Otho Martin and Wiley Martin, or either, or if from some act then done by the said Otho Martin and Wiley Martin, or either, he was about to carry out the threat or threats so made, if any, or if they had a reasonable doubt thereof, then, in that event, to find the defendant not guilty. It seems to be appellant’s contention that the word “or” as used in said charge was erroneous, and that instead the word “and” ought to have been used each time. We cannot agree with this contention. We think the charge as written clearly and unequivocally gave the appellant' the right to act if it appeared to him that the deceased and his brother, or either of them, were attempting to carry into execution any threats they had made. This was as clear and as favorable presentation of the matter as appellant could ask.

Appellant cites the case of Brookreson v. State, 92 Tex. Cr. R. 67, 242 S. W. 234, as authority for his contention. We think the charge in the instant case was written to cover the very objection that was made to the charge in the Brookreson Case, supra. In the Brookreson Case, the charge was so framed as to fail to take into account the effect of the joint assault or action of the two parties who, he claimed, were assaulting him. In the instant case, the jury are pertinently directed to take into account the acts or words, if any, of the said Otho Martin and Wiley Martin. In other words, in the instant case, the jury were directed to take into account the joint assault or joint action of both Otho and Wiley Martin.

Appellant also complains at the court’s action in refusing to permit him to introduce, in evidence, a subprena which had been issued for a witness who was not present at the time of the trial. The court, in qualifying this bill of exceptions, says that the evidence was offered near the close of the trial which had lasted about three days, that no application for a continuance was made, and no testimony was offered in open court of the sickness of the witness named in s'aid subpoena or his present whereabouts. We think appellant has failed to bring himself within the rule stated in the authorities cited by him.

Appellant also complains at the court’s action in refusing him a new trial because of newly discovered evidence. The motion for a new trial is insufficient to show error in that it fails to show by direct averment or otherwise that said newly discovered testimony would likely bring about a different result in the event of another trial, as does also the affidavit of the witness attached to said motion, and it also fails to allege that said testimony is not cumulative, collateral, or impeaching. O’Hara v. State, 57 Tex. Cr. R. 577, 124 S. W. 95; McDonald v. State, 77 Tex. Cr. R. 612, 179 S. W. 880; Madrid v. State, 71 Tex. Cr. R. 420, 161 S. W. 93.

We do not believe that the trial court abused his discretion in refusing to grant a new trial because of newly discovered evidence. We have carefully examined the record in this case and have reached the conclusion that appellant is without just cause of complaint, and, so believing, the judgment is affirmed.

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.

On Motion Eor Rehearing.

LATTIMQRE, J.

Appellant renews his complaint of the charge on self-defense based on threatened danger of an attack by deceased and his brother, which charge is set out in our original opinion. The contention is that the charge held objectionable in the Brookreson Case, supra, is, in effect, identical with the one here complained of. In order that the comparison appear, we quote the charge held bad in the Brookreson Case. Same is as follows:

“At the time of the killing the mind of the defendant was rendered incapable of cool reflection, by reason of any condition or circumstance, or combination of circumstances, or acts and conduct of the deceased, Oscar Knight, or his brother, Oliver Knight, or either of them, calculated to create and did create in the mind of the defendant, either of the emotions known as anger, rage, sudden resentment, or terror, at the time of the homicide, rendering the mind of the defendant incapable of cool reflection, then you will find the defendant guilty of manslaughter.”

The language of said charge is plain and gave the accused the right to defend against the “acts and conduct of the deceased, Oscar Knight, or his brother, Oliver Knight, or either of them.” The ruling in said case would have been different had the charge quoted used the following language: “acts and conduct of the deceased, Oscar ijnight, and, his brother, Oliver Knight, or either of them.” The use of the conjunction and makes the acts and conduct referred to in the charge, in the instant case, include the acts and conduct of both. Appellant asserts that he cited seven authorities in his brief supporting his contention in this regard, all of which are in conflict with our original opinion. We find in his brief the Brookreson Case cited and the six authorities, which are referred to in the opinion in the Brookreson Case, but none of them are at variance with the holding in our original opinion.

No state witness gave testimony that appellant was at the west door of the courthouse, where the shooting occurred, waylaying deceased. All the eyewitnesses, including appellant, said the parties met at said west door. Appellant said that he opened the door to go out; the brother of deceased said that deceased opened the door to go in. It appears that appellant had a subpoena issued for two witnesses while this case was pending in Fisher county before the venue was changed to Nolan county. Said witnesses were not present when the case was tried in Nolan county and appellant offered in evidence said subpoena, but the state’s objection was sustained and the subpoena not admitted. No continuance had been sought because of the absence of said witnesses. Appellant renews a complaint made because the court sustained the state’s objection to the introduction of this subpoena. As we view the matter, said subpcena, if in evidence, would have proved nothing material in this case. According to the state’s contention, appellant shot and killed deceased while fleeing from him, and, upon evidence offered in support of this proposition, he was convicted of murder. We find nothing supporting any contention that deceased was shot by appellant from ambush.

Finding nothing in the motion for rehearing justifying the granting of same, it will be overruled. 
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