
    PRUITT v. STATE.
    (No. 5875.)
    (Court of Criminal Appeals of Texas.
    Nov. 24, 1920.)
    1. Criminal law <&wkey;365(3)— Evidence of subsequent assault by defendant admissible as res gestee.
    In a prosecution for assault upon wife with a knife, evidence that defendant and wife ran out of the house, when he again tried to cut her, was admissible as a part of the res gestee of the fight or a continuation of it.
    2. Criminál law <&wkey;l I70'/2(I) — Not reversible error to allow leading questions as to subsequent assault already in evidence.
    In a prosecution for assault with a knife, where a witness had testified that accused threw his wife down, struck her with a knife, and that she got up and ran, and defendant again caught her and threw her down, accused cannot complain of leading questions to such witness, bringing out the same matter in substance.
    3. Criminal law <&wkey;1120(6) — Error in admission of evidence not shown by bill of exceptions.
    In a prosecution for assault with a knife, reversible error was not shown in permitting a doctor to testify that if the. knife had cut the jugular vein the assaulted party would have bled to death unless relief had come; it not being stated in the bill how such matter related to the facts of the case, especially where the description of the knife was not shown.
    4. Criminal law <&wkey;1169(8) — Testimony of physician as to appearance of accused’s eyes after crime held admissible and favorable to defendant complaining.
    In a prosecution for assault with a knife, where defendant’s theory was that he was insane at the time of the assault, but not at the time of the trial, he could not complain that a doctor, who testified on cross-examination by defendant that the eyes of defendant were red and glaring after the cutting, on further inquiry by the state testified that defendant’s eyes did not look on the trial like they did the day of the crime; such testimony being favorable to the defendant.
    5. Criminal law &wkey;>l 169(1) — Admission of testimony held not prejudicial.
    In a prosecution for assault with a knife, where a witness on cross-examination for defendant testified that defendant’s eyes were red and glaring several hours after the assault, defendant’s theory being insanity at the time ,of thq.. assault, defendant was not injuriously affected by testimony of the witness, on inquiry by the state, that he did not remember having ever seen a man immediately hfter he had committed a crime.
    6. Criminal law <&wkey;!09i (5)— Bill complaining of exclusion of evidence held indefinite.
    Where defense was insanity, a bill complaining that court would not permit defendant to show that defendant and a eoiisin who was insane were very much alike in general build, disposition, and character 'held too indefinite to be considered.
    7. Criminal law <&wkey;ll70i/2(2) — Exclusion of answer to question held not prejudicial.
    Where defense was insanity, and it was testified that defendant’s father’s half-brother had been generally considered weak-minded, sustaining an objection to the question, “Was there ever a complaint filed against your father’s half-brother for insanity?” could not have injured accused, where the answer of the witness would have been, “Not that I know of.”
    8. Criminal law 4&wkey;354 — Insanity of relative of accused admissible.
    Where defense was insanity, the mere fact that the half-brother of defendant’s father was of tC Weak mind'Was provable, and it was germane to that question that he was not of sufficient weak mind to require his being restrained ' Or charged with insanity.
    9. .Criminal, law <&wkey;>! 170/2(2) — Testimony as to previous assault held not prejudicial.
    In a prosecution for assault upon wife with knife, where a witness .testified on direct examination for defendant that he lived in the neighborhood, and that defendant was a law-abiding citizen, and his reputation. was good, defendant could not have' been injured by a negative answer to a question by the state as to whether he had ever heard that defendant had previously beaten his wife.
    101 Witnesses <&wkey;274'(2) — Cross-examination of character witness as to reports heard by him held proper.
    . Where witness testified to the general reputation and standing of accused as a law-abiding, citizen in a prosecution for assault upon his wife' with a knife, and was asked on cross-examination if he had ever heard that defendant’ had previously beaten his .wife,, and answered that he had heard it, the testimony as to what he had heard concerning defendant’s having beaten' his. wife was admissible, as tending to .impair the other testimony of the witness; the court limiting the matter to the question of, impeachment and instructing the jury that it could not be considered for any other purpose.
    II.Criminal law <©=31090(7) — Refusal of continuance, not perpetuated by bill of exceptions, not reviewable.
    Overruling of an application for continuance, not perpetuated by bill of, exceptions, cannot be considered further than as shown by. a motion for a new trial and state’s con-troversion.
    12. Criminal law <&wkey;938(3) — Facts known before trial not newly discovered evidence.
    Tacts of which accused had knowledge before the trial cannot be considered as newly discovered evidence.
    13. Criminal law <&wkey;939 (2) — Accused must use diligence to secure witnesses. 9
    Accused must use diligence to secure witnesses before the appellate court is required to reverse a conviction by reason of the denial of a motion for new trial on the ground of newly discovered evidence.
    Appeal from. District Court, Wise County; E. O. McKinsey, Judge.
    C. O. Pruitt was convicted for assault, and' appeals..
    Affirmed.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was allotted two years in the penitentiary for an assault upon his wife; the evidence showing it was with a knife.

There are several bills of exception reserved to the.rulings of the court which are indefinite and incomplete in their statements.' The first bill recites that defendant threw; Mrs. Pruitt, his wife, down on the floor and struck her with a knife, and that Mrs. Pruitt got up and ran, and the defendant “got her again and threw her down:.” State’s counsel propounded the following questions to. the witness, and she made answers as set out:

“Q. Did he, the defendant, follow Mrs. Pruitt out to the east side of the house? A. Yes, sii\' Q. Did he try to cut her? A. He did.”

Appellant urged objection on the ground, that the questions were leading and sugges-. tive, and that the witness had shown no dis-, position to conceal any material fact in her-testimony, and was- competent to testify without being led. The witness was named Katie Coffee. If the running out to the east side of the house was a .part of the transaction and res gestas of the fight or a continuance of it, we are of opinion that it was not error. The witness had testified that appellant threw his wife down, struck her with a knife, and that she got up and ran, and defendant again caught her and threw her down. The facts in substance were already before the jury.. Branch’s Ann. P. C. p. 90, § 157. We are of opinion that as this bill presents the matter there was no error, and believe it was admissible.

While the witness Merrifield was testifying he stated that when he arrived on the scene of the cutting the defendant and his wife were sitting down at the east side of the garage, and that defendant had a knife in his hand. State’s counsel then asked the witness if the knife he handed to witness .was the one defendant had in his hand at that time, and witness replied that it looked like the knife defendant had. The state then introduced the witness Moore and asked him to examine the knife, and state as a physician and surgeon if the knife was such a weapon as was calculated to inflict serious bodily injury or death. Tire objections urged are not statements of fact, and are not so verified by the court. The answer of the witness, if any was given, is not shown. The objection was to the question. Whether the witness testified or not the bill fails to disclose.

The same witness was asked if as a physician and surgeon he could tell the jury what would have been the result in the event the jugular vein had been severed. Objection was urged that this was but a conclusion or opinion of the witness, and was also a hypothetical question and improper. The witness answered:

“Well, if there had not been some one there to have taken it up, she would have bled to death.”

How this related to the facts of the case is not stated. This is all that the bill shows. Whether it was permissible to prove by the doctor that if the, knife had cut the jugular vein she would have bled to death unless relief had come was not a matter of serious importance, and it occurs to us that, as presented, there would be no such error as requires this court to reverse the judgment, if error. Whether it was the subject of expert testimony or not would make but little difference; besides, the description of .the knife is not shown .by the bill of exceptions. The knife may have been of sufficient dimensions to have killed the woman or cut the jugular vein. The evidence shows she was cut on the throat, and right near or over that vein. We are of opinion there is no valid objection shown or reason why the testimony should not be given.

The same witness oil cross-examination by defendant testified that when he arrived at the scene of the cutting two or three hours after its occurrence the “eyes of defendant were red and glaring,” and that his eyes did not look just right, and had a wild and excited look. Thereupon, on further inquiry by the state, the witness was asked:

“Look at the defendant’s eyes now; how do his eyes compare with them then V”

The witness stated:

“His eyes do not look like they did that day.”

Objection was urged to this testimony. We are of opinion this was not error. If we go to the statement of facts it is shown that the plea of insanity was set up by defendant. It occurs to ns that this testimony was rather favorable to the defendant. If he had the appearance or indication of mental aberration at the time the doctor found him immediately after cutting his wife, it would be a favorable fact, going to indicate to the minds of the jury that defendant’s mind was then abnormal, and the further fact that his eyes at the time of the trial were not as they were at the time of the cutting would also be favorable to the conclusion that at the time of its occurrence his mind might have been abnormal. The theory of appellant was that he was not insane at the time of the trial, but at the time of stabbing his wife.

The next'bill shows that the same witness was asked if he had ever seen a man immediately after he had committed a crime. He stated he did not remember. The answer could in no way have affected appellant injuriously.

The same witness was also asked if he was an expert on insanity, had ever known a man who had only one insane impulse and only one. He answered:

“I think Mrs. Jim D-, last winter, when she went crazy wanted to hit her boy with the poker.”

.This was objected to, and the witness was required to answer Yes or No. He answered,

“Yes; if she ever made another one, I never knew it.”

It is not shown in the exceptions how this could have been injurious.

The witness Alfred Pruitt testified:

“I am a brother of the defendant. My father had a half-brother that did not seem like he had much mind, and was generally considered weak-minded. This Gogburn boy at ift. Worth that killed himself and wife is a first cousin of Lum Pruitt, the defendant.”

He was then asked:

“Are they anything alike in disposition and make-up. Were they anything like'the same height?”

Witness answered:

“Yes; pretty well the same height;' he was a red-face fellow.”

He was then asked if there was any similarity between them. On objection by the state witness was not permitted to answer. Appellant expected to show that the Cogburn boy and the defendant were cousins and very much alike in general build, disposition, and character. His contention was that this testimony would have tended to establish that there was insanity in the family; the defense of the defendant being that he was insane at the time of the commission of the offense set out in the indictment. This bill is too indefinite to be considered, and, as presented, there is no sufficient reason to show how it would have benefited defendant.

It was also testified by the same witness .that defendant’s father’s half-brother had been a person who. was generally considered weak-minded. After proving this witness was then asked this question:

“Was there ever a complaint filed against your father’s half-brother for insanity?”

His answer would have been:

“Not that I know of.”

This could not have injured appellant. The mere fact that the half-brother of defendant’s father was of a weak mind was provable. It was germane to that question that he was not thought by the family to be of sufficient weak mind to require his being restrained, or charged with insanity.

The witness Watson testified on direct examination for defendant that he lived in the neighborhood of appellant, and that appellant was a law-abiding citizen, and his reputation was good. He' was asked if he had ever heard appellant had previously beaten his wife. He answered that he had not. This could not have injured appellant

McKinney testified to the general reputation and standing of appellant as a law-abiding citizen, and was asked if he had ever heard, that defendant had previously beaten Ms wife. He answered that he had heard it. This was proper, in view of the fact that the witness had testified to the reputation of the accused as being that of a law-abiding citizen. This would tend to impair the testimony of the witness. He having testified from hearsay as to reputation, it was proper for him to state that he had heard defendant had previously given his wife a whipping. The court limited this to the question of impeachment, and instructed the jury it could not be considered for any other purpose.

On the motion for new trial appellant set up what he claimed to be newly discovered testimony. This was seriously com troverted, and the controverting statements of the district attorney are filed in the case with the motion for new trial. There was no evidence introduced; if so, the record does not show it, the matter being presented alone upon affidavits and matters set up in the motion and controversion. There was an application for continuance also made for some, if not all, witnesses, which was overruled, but this is hot perpetuated by bill of exceptions, and therefore cannot be considered further than as shown by the motion for new trial and the state’s controversion. These matters show that defendant knew of the facts tó be produced by these absent witnesses; therefore it could not be considered as newly discovered testimony. They lived in the same neighborhood, and had lived there for years. It was shown that appellant’s relatives were taking an interest in the case, and in fact some of them lived in the immediate neighborhood and vicinity where the trouble occurred, and could easily have been obtained. In other words, as we understand this motion for a new trial, it does not show newly discovered testimony, as urged for a new trial below and for reversal here. The diligence to secure these witnesses we think is not shown to be sufficiently strong to require’ this court to reverse. The witnesses could have been obtained. Quite a number of witnesses from the same neighborhood were present at the trial and testified.

As the record presents itself to us, we are of opinion that the judgment should be affirmed ; and it is accordingly so ordered. 
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