
    DRAKE v. STATE.
    (Court of Criminal Appeals of Texas.
    April 26, 1911.)
    1. Criminal Law (§ 939) — Motion nor New Triai> — Newly Discovered Evidence — Diligence.
    Defendant’s motion for a new trial on the ground of newly discovered evidence of two witnesses was properly overruled where defendant’s attorney had talked to such witnesses before the trial, and had caused them to attend the trial' and be sworn as witnesses, and had placed one of them on the stand.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2318-2323; Dec. Dig. § 939.]
    2. Assault and Battery (§ 96) — Criminal Responsibility — Statutory Provisions— Instructions.
    Pen. Code 1895, art. 592, subd. 3, provides that one who is at the time of attempting to commit a battery at so great a distance from the. person assailed that he cannot reach his person by the use of the means with-which he makes the attempt is not guilty of an assault; but the use of any dangerous weapon in an angry or threatening manner, with intent to alarm another, and under circumstances calculated to effect that object, is an assault. Defendant, convicted of aggravated assault, admitted firing a gun, but his evidence showed that he was too far distant to inflict an injury, that he intended no injury, but cursed and fired his gun in anger to frighten the prosecuting witness and his family, and that he did not see the person claimed to have been assaulted, and that lie did not shoot in that direction. Held, that the court erred in failing to charge on simple assault.
    [Ed. Note. — For other cases, see Assault and Battery, Dec. Dig. § 96.]
    Appeal from District Court, Red. River County; Ben H. Denton, Judge.
    Yol Drake was convicted of an aggravated assault, and he appeals.
    Reversed- and remanded.
    C. E. Dane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

In this case the appellant was charged with an assault to murder, and upon trial was convicted of an aggravated assault.

1. The first contention of defendant is that the court erred in not granting a new trial because of newly discovered evidence. One of the witnesses that it is claimed knew additional facts was placed upon the stand and testified. The other witness was in attendance upon the court, and sworn as a witness, though not used. If they knew facts, under such circumstances it was the duty of defendant to adduce them. Defendant’s counsel admits he talked with both witnesses • about this case, and what they knew. He placed one on the stand, and the other he decided not to do so. In view of the evidence he states he expects to prove by each on another trial, when not supported by the affidavit of either of them, the court did not err in overruling the motion on this ground.

2. The only other assignment presents the issue of whether or not the court erred in failing to charge on simple assault. The state’s evidence and theory support the verdict of the jury. The defendant and the testimony of his witnesses admit that defendant fired a gun, but say that he was too distant to inflict an injury, and defendant says he intended no injury, and cursed and fired his gun in anger to frighten the prosecuting witness and the entire family; that at the time he did so he was at so great a distance, with impediments between them, he did not see the person who it is alleged he assaulted, but admits he was cursing and fired the gun; however, he says he did not shoot in direction of the house; that he was 350 yards from the house.

Article 592, subd. 3, of the Penal Code, provides: “It follows that one who is, at the time of making an attempt to commit the battery, under such restraint as to deprive him of the power to act, or who is at so great a distance from the person assailed as that he cannot reach his person by the use of the means with which he makes the attempt, is not guilty of an assault. But the use of any dangerous weapon, or the semblance thereof, in an angry or threatening manner, with intent to alarm another, and under circumstances calculated to effect that object, comes within the meaning of an assault.” Under defendant’s theory, he would, if guilty of any offense, be guilty of only an assault, and the court should have submitted this issue to the jury.

The judgment is reversed, and the cause is remanded.  