
    DAY v. STATE.
    (Court of Criminal Appeals of Texas.
    May 24, 1911.)
    1. Criminal Law (§ 1064) — Assignments of Error — Motion for New Trial.
    Assignments of error complaining of matters not presented in the motion for new trial cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    2. Criminal Law (§ 917) — New Trial — Absence of Witnesses — Refusal to Grant Continuance.
    Where, on a trial for assault to murder, accused testified that prosecutor had a gun in a shooting position at the time of the shooting, and prosecutor denied that he had a gun in his hands at the time, and his wife corroborated him, and a witness changed his testimony so as to corroborate prosecutor, and the testimony of a physician indicated that prosecutor had held a gun in a shooting position at the time he was shot, the refusal to grant a continuance on the ground of the absence of a fitness who would contradict the evidence o’f prosecutor was ground for new trial, though the diligence used to secure the attendance of the witness was not sufficient, and though the denial of the continuance, when made, was not erroneous because of the absence at that time of a showing of the materiality of the testimony of the absent witness.
    [Ed. Note. — For other cases, Law. Cent. Dig. §§ 2161, 2162; 917.] see Criminal Dec. Dig. §
    3.Criminal Law (§ 424) — Evidence—Relevancy.
    Testimony that the son of accused and a witness ran away to avoid going before the grand jury, and that the son furnished the money therefor, is inadmissible against accused in the absence of a showing that he furnished his son the money or aided or induced the witness to avoid going before the grand jury.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1002-1010; Dec. Dig. § 424.]
    4. Criminal Law (§ 351) — Evidence—Relevancy.
    Where a witness testified that he had never heard prosecutor make any threat against accused, the witness should be permitted to testify that accused tried to induce him to state that prosecutor had made threats.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 776-785; Dec. Dig. § 351.]
    5. Criminal Law (§ 382) — Evidence—Materiality.
    Where a witness for the state testified that accused had attempted to induce him to give false testimony, testimony of the witness that he made a complaint against accused therefor, and as to the result of the trial thereon, was immaterial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 847-864; Dec. Dig. § 382.]
    6. Criminal Law (§ 683) — Evidence—Reiteration in Rebuttal of Testimony Given on Direct Examination.
    A witness for the state, testifying on the direct examination that accused had attempted to induce him to give false testimony, should-not be permitted to reiterate the testimony in rebuttal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1615-1617; Dec. Dig. § 683.]
    7. Criminal Law (§ 369) — Evidence—Relevancy.
    Where, on a trial for assault to murder, a witness stated that he had not heard prosecutor make any threat against accused, and that accused had tried to induce him to testify to the contrary, the testimony of a third person that she had seen accused waving a knife over the head of witness was inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    8. Criminal Law (§ 783) — Evidence — Instructions.
    Whether there was a conflict in the evidence on the issue as to whether accused had attempted to induce a witness to give false testimony, the court should control in its charge the purpose for which evidence was admitted, to show that accused had tried to induce the giving of false testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1872-1876; Dec. Dig. § 783.]
    • Appeal from District Court, Denton County; Clem B. Porter, Judge.
    J. W. Day was convicted of aggravated assault, and he appeals.
    Reversed and remanded.
    Owsley & Sullivan and Emory C. Smith, for appellant.
    Chas. Mays, Co. Atty., H. R. Wilson, Asst. Co. Atty., McLean & Scott, and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec, Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted, charged with assault to murder, and upon a trial he was convicted of aggravated assault, and his punishment assessed at two years’ imprisonment in the county jail, and a fine of $1,000.

In this case it appears that Harry High-tower and appellant’s son, Jerome Day, had an altercation on Monday, January 19, 1909. Appellant was not at home that day, but upon returning home he was informed about the matter, and it angered him. Tuesday morning he, in company with his son and Walter Sandy, went over to a Mr. Johnson’s to see about the purchase of a horse. In going to Johnson’s the road went by where Mr. Hightower resided. When they got even with Hightower’s some words ensued between appellant and Hightower, when appellant jumped the fence, drew his pistol on Hightower, and compelled him to put down whatever he had in his hands. There is a difference of opinion as to what Hightower had, he claiming only to have had a wrench which he was using to grease a wagon, while appellant and Sandy say that he had the wrench and a rock. Whatever he had, appellant required him to put it down, and after some words appellant returned to his buggy, and started to drive off. Hightower ran in his house, and as he says, in search of his pistol, but failing to find it, got a Stillson wrench, went out on the gallery, and threw it in position as though it was a pistol, and told appellant to “run.” Instead of running, appellant jumped out of his buggy and shot at him three times. No one was hurt or injured at this time. Appellant drove on off, and after he left Hightower says he found his pistol, and was cleaning it when Simpler came along, and he admits telling Simpler “that he was going to take the six-shooter off of appellant and whip hell out of him.” Simpler says Hightower told him that appellant had shot at him two or three times, and he (Hightower) was going to kill him when he came back. Later in the day Simpler says he again saw High-tower, and he wanted him (Simpler) to stay and help him take the pistol off of appellant, that he was going to “whip hell out of appellant.” Simpler says he would not stay, and advised Hightower to let appellant alone, and if appellant bothered him (Hightower) he would give him a $5 hat. That when he (Simpler) would not stay, Hightower remarked he had Con Henderson there to help him take the pistol off of appellant. After the morning trouble, High-tower went’ out in the pasture where some boys were hunting; and got a shotgun from one of the boys to hunt with, he claims. When he returned home, his wife informed! him that some horses and cattle had broken down a portion of the fence, and he got a hammer and some nails to fix the fence; 1-Ie went to work on the fence, 'laying the gun down close to the fence. This fence was near the road appellant would travel in returning home.

Appellant says after the difficulty that morning he went on to Johnson’s to see about the horse and to another point to inquire about his uncle who was sick at that time, and who did shortly thereafter die. On his way home, when he got near High-tower’s, he saw him at the fence, and intended driving on by when he was hailed by Hightower. The version of what took place at this time varies considerably. Hightower says he called to appellant, saying “What have you got it in for me for?” and appellant replied, “You God damn son of a bitch, what have you got it in for me for?” and shot at him with a pistol, when Jerome Day shot him with a shotgun, hitting him in the eye; that he had nothing in his hand at the time but the hammer;: that when he was shot he turned, picked up the gun and went in the house. In his statement he is corroborated by his wife, and to a more or less extent by Walter Sandy.

Appellant contends that as he was driving back by, Hightower hailed him, and when he stopped his team Hightower remarked, “What have you got it in for me for?” when he asked him “What have yon got it in for me for?” when Hightower stooped down behind the fence, and he stood up in his buggy and saw him pick up the gun, and as Hightower did so he drew his pistol and fired at him; that as he fired Hightower aimed the gun at them, when his son fired. That when his son fired Hightower hollered and lowered the gun, when he told his son to “drive 'on.” That he could have shot again, but as Hightower had lowered his gun he did not desire to do so, and drove on off.

1. Appellant filed his motion for a new trial on October 10th, and it was overruled by the court’ on the same day. On December 10th appellant filed assignments of error, in which a number of matters are complained .of not presented in the motion for a new trial. These we cannot consider. The unvarying rule in this court has been that nothing that is not presented in the motion for a new trial will be reviewed by this court on appeal. Harvey v. State, 57 Tex. Cr. R. 7, 121 S. W. 605; Veas v. State, 55 Tex. Cr. R. 125, 114 S. W. 830.

2. The first ground in the motion for a new trial complains of the action of the court in overruling the application for a continuance on account of the absence of. the witness William St. John. There was no diligence used to secure the attendance of this witness, but’ appellant attempts to excuse this lack of diligence in his motion for a new trial, alleging that he had been surprised by the testimony of Con Henderson, in the trial of Jerome Day, the day before this case was called for trial. Process had been issued, and the witness was in attendance at one term of the court, but had failed to appear at a subsequent term. Appellant alleges that at the term St. John attended court, he talked with him and Con Henderson, and they both told him and his counsel that Mrs. Hightower did not see the difficulty or any part of it. That she was in the dining room with them, and, further, that they had both told him and his counsel that when Hightower came in the house, he “examined the gun, and that there were on it marks of two shot, one of which had struck the breech of the gun at the place where it joins the barrel, and the other had scraped the wooden part of the breech a little back of where it first struck.” This testimony, if true, was very material to appellant’s defense. Mrs. Hightower had testified strongly corroborating her husband in his version of the affair, and that he had no gun in his hands at the time he was shot; The physician, Dr. McCoy, who attended Mr. Hightower when shot, testified he had two wounds in his left hand. “The range of the shot that made those wounds on his hand, as well as I remember now, the one in the finger, I think it was kind of angling, and this, possibly, in the hand here it ranged backward, running back. The one on the back of the hand ranged hack toward the wrist. The one in the finger ranged toward the knuckle in a general direction.” There was but one gun shot, and it struck High-tower in the eye, and this testimony shows that the left hand must’ have been in a position in front of Hightower to have received these shots, and if the witness St. John would testify that the gun received a shot in the breech, it would have been strong corroboration of defendant’s testimony that Hightower had the gun and had it in a shooting position at the time he was fired on.

When there is a lack of diligence to secure the attendance of a witness, we are loathe to reverse a case, but in the attitude this case is presented to us, this testimony is very material, and in Mitchell v. State, 36 Tex. Cr. R. 306, 33 S. W. 367, 36 S. W. 456, this court held: “In our opinion there was a lack of diligence, but it is insisted that although due diligence may not have been used to procure their attendance, if on the motion for a new trial it appears that the testimony of the absent witness is material and probably true, a new trial should have been granted, and this appears to be the rule in accordance with the authorities in this state.” See also Hammond v. State, 28 Tex. App. 413, 13 S. W. 605; Self v. State, 28 Tex. App. 409, 13 S. W. 602; McCline v. State, 25 Tex. App. 247, 7 S. W. 667; Taylor v. State, 13 Tex. App. 205, and cases cited in these authorities. See, also, authorities cited in White’s Annotated Code of Criminal Procedure, § 642, subd. 2.

In the light of the testimony of the attending physician, we cannot say this testimony is not probably true, and inasmuch as appellant swears he will so testify, and that he relied on Con Henderson to make this proof, and that Henderson had changed his testimony, in which he was surprised; also the change in the testimony of the witness' Walter Sandy as shown by the record, we are impressed that a new trial should have been granted. Not knowing the materiality of the testimony and its direct bearing on the real issue in the case, and in view of the sharp conflict on this issue, the court did not err in overruling the application for a continuance when made, but when it became manifest during the trial, this should have been considered on the application for a new trial.

3. As the record is presented to us, we think the court erred in permitting the witness Walter Sandy to testify that Jerome Day and he were running from the grand jury, and that Jerome Day furnished him the money. Upon another trial, if it is made to appear that defendant furnished his son the money, or in any way aided or induced Sandy to avoid going before the grand jury, this testimony, of course, will be admissible, but as shown by this record, defendant had. no connection with such conduct.

4. The testimony of the witness la'nie Finlayson as to defendant trying to induce him to testify that Hightower had threatened his life, is probably admissible against this defendant as shown by this record. If the witness should say on another trial that he never heard Hightower make any threat, and defendant tried to induce or demand of him that he make such statement, he should be permitted to so testify, but it is immaterial whether or not the witness made any complaint against defendant for such offense, or what was the result of the trial on such complaint. Nor should the witness have been permitted to reiterate this in rebuttal, after testifying to it on direct examination.

5. Nor should the testimony of the witness Hattie Low be admitted that she saw the defendant waving a knife over the head of Finlayson. While the court withdrew Hattie Low’s testimony, yet in view of the fact that the case is reversed on other grounds, we call attention to this, that it may not creep into another trial of the case. Appellant was not on trial for the assault on Finlayson, and only such facts should be admitted in this connection as tend to show that he tried to induce or compel the witness to testify to a threat, and in the event there is a conflict in the testimony as to whether defendant did try to induce false testimony, the court should control the purpose for which it is admitted in his charge.

The other matters complained of do not present any error.

The judgment is reversed and the cause is remanded.  