
    JOHNSON v. STATE.
    (No. 4116.)
    (Court of Criminal Appeals of Texas.
    June 14, 1916.)
    Criminal Law <&wkey;942(l) — New Trial — Newly Discovered Evidence — Impeaching
    Testimony.
    Affidavits, showing that one of the main witnesses for the state had a bad reputation for truth and veracity, did not support motion for new trial on the ground of newly discovered testimony ; since testimony which is only impeaching does not afford ground for new trial for newly discovered testimony.
    _ [Ed. Note. — For other cases, see ■Criminal Law, Cent. Dig. § 2331; Dec. Dig. <&wkey;942(l)J
    Appeal from District Court, Ellis County; E. L. Hawkins, Judge.
    John Johnson was convicted of murder, and he appeals.
    Judgment affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

The jury convicted appellant of murder, allotting the death penalty.

It is unnecessary, we believe, to give a statement of the facts. While appellant makes a serious contention that the evidence is not sufficient, we do not agree with that contention. The facts and details are numerous, covering over 150 pages of the transcript, and show a brutal paurder by somebody. The evidence shows two parties did the act for the purpose of taking money and other things. The deceased, Jones, evidently engaged them in vigorous battle. Larkin was convicted and hung for the same murder. The confession of defendant placed his case beyond the pale of circumstantial evidence. I-Iis confession is direct, in which he gave some details of the fight and killing.

In his amended motion for a new trial, defendant alleges newly discovered testimony, setting out the affidavits of two witnesses. These affidavits show that one of the main witnesses who testified for the state had a bad reputation for truth and veracity. These parties lived in Waxahachie, in Ellis county, a number of years, as did the witness who testified. This could hardly be used as newly discovered testimony, even if it affords sufficient grounds for reversal otherwise. If the witness had the general reputation for want of veracity in the neighborhood where all these witnesses lived, it ought to be assumed, or presumed, that other witnesses would have known this fact. Testimony, which only is impeaching, does not afford a ground for a new trial. There must be something more than the mere question of impeachment to authorize the granting of a new trial for newly discovered testimony. The state filed a contest and placed affidavits in the record which show confessions of the defendant, which could be produced upon another trial. Two witnesses, Aiken and Watson, filed affidavits which would show upon another trial of the defendant his confession, which was made to each one of those affiants. Motion was made by the attorneys for appellant to strike these from the record, which was overruled by the court. It should not be necessary to here decide whether the court erred or not in refusing to eliminate those affidavits. The showing made by the appellant of the ground of newly discovered evidence does not come within any rule of newly discovered testimony; and the affidavits filed by the state certainly could not be of any benefit to appellant on another trial, because they contain statements by the appellant which, if sworn to, would show his unquestioned guilt. So, from any standpoint, it could not be contended that the testimony, either for the state or for appellant, could have produced a different result, inasmuch as the impeaching testimony is not a ground for a new trial and the affidavits of the confession could not benefit the appellant. The punishment would hardly be reduced from the death penalty to some term of imprisonment in the penitentiary on additional confessions. Additional confessions could not be accorded as testimony favorable to appellant.

For the reasons given this judgment will be affirmed.  