
    McDONALD v. STATE.
    (No. 3704.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.)
    1. Criminal Law <©=>844 — Instructions — Generality of Objections.
    The objection to a charge that it did not directly submit the issues as raised by the evidence, and did not instruct on certain named subjects, is too general to point out any specific error, as required by the statute.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2025; Dec. Dig. <@=5844.]
    2. Criminal Law <@=51109- — Harmless Error —Admitting and Striking Evidence — Admission of Evidence.
    Admission of evidence of propositions of defendant in seduction to witness was harmless, where it was stricken out, and the jury instructed to disregard it; the jury having assessed the lowest punishment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. <@=51169.]
    3. Criminal Law <@=5398 — Evidence — Contents of Lost Letter.
    Witness, having lost a letter to her, could testify to its contents.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886; Dec. Dig. <@=5398.]
    4. Criminal Law <@=>1109 — Reception of Eviden ce — Objections.
    Where proper objection was not made till after witness had testified to part of the contents of a letter, and was then sustained, there was no error; the court having previously instructed that, under such circumstances, testimony should not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. <@^1169.]
    
      5. Witnesses <§=5369 — Impeaching Testimony.
    To impeach a witness for defendant in seduction, the state may show witness prescribed for prosecutrix to produce an abortion.
    [Ed. Note. — Eor other cases, see Witnesses, Cent. Dig. §§ 1187, 1188; Dec. Dig. <§=>369.]
    6. Criminal Law <§=>1169 — Harmless Error —Admission oe Evidence.
    Erroneous admission of testimony is not ground for reversal; the same fact having been testified to by another, without objection:
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. <§=>1169.]
    7. Criminal Law <§=a413 — Evidence—Self-Serving Declarations.
    Refusing to allow defendant in seduction to show his previous statements to persons of his contemplated marriage to another than prose-cutrix, it not being shown or attempted to be shown that they had been communicated directly or indirectly to prosecutrix, was not error, but it was enough to allow him to show that they had also been made to other persons more likely to communicate them to- prosecutrix.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. <§=> 413.]
    8. Affidavits <§=>5 — Authority to Take — Attorney of Accused.
    Affidavits sworn to before defendant’s attorney are not entitled to consideration on his motion for new trial.
    [Ed. Note. — Por other cases, see Affidavits, Cent. Dig. §§ 18-27; Dec. Dig. <§=>5.]
    9. Criminal Law <§=s1156 — Appeal—Discretion-Denial of New Trial.
    Denial of a new trial on the ground of newly discovered evidence will not be disturbed, unless it appears that the trial court abused its discretion to defendant’s prejudice.
    [Ed. Note. — Por other eases, see Criminal Law, Cent. Dig. §§ 3067-3071; Dec. Dig. <§=> 1156.]
    Appeal from District Court, Denton County ; C. P. Spencer, Judge.
    J. T. McDonald was convicted, and appeals.
    Affirmed.
    Owsley & Owsley, of Denton, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of seduction, and assessed the lowest punishment. It is useless to detail or discuss the evidence. There can be no question as to its sufficiency to sustain the verdict There was some conflict in the evidence. That of the appellant and his witnesses, if believed, would have been sufficient to have authorized his acquittal. That question was for the jury, however, and not for this court The prosecutrix was amply ■ corroborated. Williams v. State, 59 Tex. Cr. R. 347, 128 S. W. 1120; Beeson v. State, 60 Tex. Cr. R. 39, 130 S. W. 1006; Nash v. State, 61 Tex. Cr. R. 269, 281, 134 S. W. 709; Gillespie v. State, 73 Tex. Cr. R. 602, 603, 166 S. W. 135.

The only objections to the charge of the court, after it had been submitted to appellant’s attorneys, and before it was read to the jury were “that the same did not directly submit the issues as raised by the evidence, and did not instruct on lust, passion, or fear,” and that the court refused to give his 11 special charges. These objections, under all of the decisions, are too general to point out any specific error, as required by the statute. However, we may discuss his refused charges herein later. The court gave a full and correct charge submitting every question raised by the evidence.

Appellant has several bills to the admission and exclusion of certain evidence and the action of the court pertaining thereto. His first sets up that, while Renza Mitchell, the mother of the prosecutrix, was on the stand, certain questions and her answers thereto, which are copied in the bill, making some six typewritten pages, were had. This bill gives the questions and answers, his objections to some of them, the court’s ruling, what the district attorney said, etc. The court, in approving the bill, did so with this qualification:

“When this witness was on the stand, she did not speak very plainly and talk from the point, as is often the case with negro witnesses, and her testimony up to the statement, in substance, that the defendant had made a proposition to her for carnal intercourse, would hardly indicate that she had such in mind, but I understood therefrom that she was meaning a conversation with defendant regarding his mistreatment of her daughter, who was a pupil of the defendant in the colored school at Denton. So soon as it became apparent that she had in mind an illicit proposition to herself by defendant, I immediately struck out the testimony, and instructed the jury not to consider the same. I think the proceeding had no effect on the jury whatever.”

In our opinion, this bill, as explained by the judge, presents no reversible error. The jury assessed the lowest punishment. Miller v. State, 31 Tex. Cr. R. 636, 21 S. W. 925, 37 Am. St. Rep. 836; Hatcher v. State, 43 Tex. Cr. R. 239, 65 S. W. 97; Robinson v. State, 63 S. W. 869; Trotter v. State, 37 Tex. Cr. R. 474, 36 S. W. 278; Jones v. State, 33 Tex. Cr. R. 8, 23 S. W. 793; Morgan v. State, 31 Tex. Cr. R. 1, 18 S. W. 647; Sutton v. State, 2 Tex. App. 348; Roberts v. State, 48 Tex. Cr. R. 210, 87 S. W. 147; Martoni v. State, 167 S. W. 351.

In his next bill he complains that, when the witness Leta Mitchell, prosecutrix, was testifying, she was permitted, over his objections, first, to testify to the contents of a letter she had received from appellant. She testified that she had lost it. The court, in qualifying his bill on this point, states that she had lost that letter, which rendered its contents admissible. The court was correct in this. Then it appears the witness was asked about a letetr she had written to the appellant. As to this the court, in quali fying and approving the bill, said:

“With reference to the letter she claims to have written defendant, objection was sustained to her telling the contents. However, some parts of it she had told over objection of defendant, but, when the objection was made that defendant had been given no notice to produce it, the objection was sustained, and I had previously stated to the jury that, when an objection was sustained to any proffered testimony, they should not consider it, even though some part of it had been heatd by them, as it frequently occurs that a portion of a witness’ answers appears unobjectionable, and more of it shows the whole to be inadmissible.”

As qualified, this hill shows no error.

In his nest bill he complains of the testimony of Renza Mitchell, introduced in rebuttal, to the effect that in June, 1914, when her daughter, the prosecutrix, was sick, caused by her pregnancy, Mrs. Lawson, one of the defendant’s material witnesses, called on her and gave her a prescription for cotton root to produce a miscarriage on Leta. What the prescription was is not otherwise disclosed than as stated. In approving the bill, the court qualified it as follows:

“This bill is approved, with the qualification that the witness Mrs. Lawson had testified in favor of the defendant and against the contention of the prosecutrix, and showed considerable interest in the defense, as the court thought, and this testimony was admissible, in the opinion of the court, as affecting the credibility of the said Mrs. Lawson, and was limited orally to the jury for such purpose, and perhaps in the charge, which is not now accessible."

The charge did so limit it. Mrs. Lawson denied that she had given any such prescription. Appellant contends that, as Mrs. Lawson so denied, the state was bound by her denial, as she was attempted to be impeached on an immaterial matter. His contention does not apply in this case. The law is well established that the opposite side may show animus and prejudice on the part of the adverse witness towards him and its extent, and that in such examination great latitude is allowed when the object is to impeach the credit of the witness; also that motives which operate on the mind of the witness when he testified are never regarded as immaterial or collateral matters. A party may prove declarations of the witness which tend to show bias, interest, prejudice, or any other mental state, or status, which, fairly construed, might tend to affect his credibility. Pope v. State, 65 Tex. Cr. R. 51, 143 S. W. 611; Earles v. State, 64 Tex. Cr. R. 537, 142 S. W. 1181; Cain v. State, 68 Tex. Cr. R. 517, 153 S. W. 147; Burnaman v. State, 70 Tex. Cr. R. 365, 159 S. W. 244, 46 L. R. A. (N. S.) 1001; and authorities in the opinions in said cases.

Besides this, before Renza Mitchell testified, her daughter, Leta, had testified to the same thing, without any objection thereto by the appellant, as shown by this record. As frequently held by this court:

“The erroneous admission of testimony is not cause for reversal, if the same fact is proven by other testimony not objected to.” Wagner v. State, 53 Tex. Cr. R. 307, 109 S. W. 169; Bailey v. State, 69 Tex. Cr. R. 484, 155 S. W. 536; Christie v. State, 69 Tex. Cr. R. 602, 155 S. W. 541; and many other cases.

By other bills appellant complains that the court refused to permit him to prove by the superintendent and some of the trustees of the public schools at Denton, white men, that about June, 1913, when they first employed him as a teacher in the colored schools at Denton, he then told them he intended to get married, and that on another occasion he so told them. The court, in explanation of these 'bills, refusing to permit such testimony, shows that he did so because they were not shown or attempted to be shown to have been communicated, directly or indirectly, to the prosecutrix, and that they were therefore self-serving, but that all other testimony by all other negro witnesses (the appellant and the prosecutrix being negroes) as to statements by appellant of his approaching marriage with a woman other than prosecutrix, or his claimed intended marriage, were admitted, and that all other such statements, where it was thought prosecutrix would likely learn of it, were admitted. The record shows that many of the witnesses did testify to said declarations. These bills present no error.

Notwithstanding the court’s refusal to give any of his special charges is not raised and presented in such a way that we could consider them, yet we have examined all of them, and, where proper to be given, they were clearly embraced in the court’s charge, and those not so embraced should not have been given, and the refusal to give them presents no error.

The only other question is that appellant has the affidavits of three persons attached to his amended motion for new trial, claiming that they show newly discovered evidence which he claims ought to have resulted in the court’s granting him a new trial. The first of these affidavits is sworn to before one of his attorneys, which as has been uniformly held prevents its consideration. Maples v. State, 60 Tex. Cr. R. 171, 131 S. W. 567, and many cases to the same effect. The appellant’s motion on this ground was controverted and vigorously contested by the county attorney. It was all threshed out before the trial judge.

“It is well established by the decisions of this court that a motion for a new trial on this ground is closely scrutinized, and is largely confided to the discretion of the trial court; and the disposition there made of it will not be disturbed on appeal, unless it be apparent that the trial court abused its discretion to the prejudice of appellant. Burns v. State, 12 Tex. App. 269; Bell v. State, 1 Tex. App. 598; Templeton v. State, 5 Tex. App. 398; Shaw v. State, 27 Tex. 750; West v. State, 2 Tex. App. 209; Terry v. State, 3 Tex. App. 236.
“It is also well established that in a motion for new trial on this ground it is incumbent on the appellant to satisfy the court: (1) That the evidence has come to his knowledge since the former trial; (2) that it was not owing to want of due diligence on his part that it was not discovered and did not come to his knowledge before the trial; (3) that it is competent and material evidence, and not merely cumulative, corroborative, or collateral; (4) that it will probably produce a different verdict if a new trial is granted; (5) that it is not simply for the purpose of impeaching a former witness. If the application is defective in establishing any one of these essentials, a new trial should be refused. Fisher v. State, 30 Tex. App. 502 [18 S. W. 90]; West v. State, supra; Duval v. State, 8 Tex. App. 370; Gross v. State, 4 Tex. App. 249; Hutchinson v. State, 6 Tex. App. 468.” White’s Ann. C. C. P. § 1149; Gray v. State, 65 Tex. Cr. R. 206, 207, 144 S. W. 283, 284.

We think the court’s action in refusing a new tria] on this ground was correct.

The judgment is affirmed. 
      át=5For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      <§=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     