
    ESQUIVEL v. STATE.
    (No. 7388.)
    (Court of Criminal Appeals of Texas.
    Dec. 20, 1922.)
    B. Homicide @=>319* — Newly discovered evidence merely impeaching not ground for new trial.
    In a prosecution for assault with intent to murder, it was not error to refuse a new trial on the ground ' of newly discovered evidence that a state witness, who claimed to have been an eyewitness and to have separated the parties, was at another place, and could not have done so; such evidence being purely impeaching.
    2. Criminal Jaw @=>938(2)— Newly discovered evidence of persons summoned as witnesses and present, but not called; held not ground for new trial.
    It was not error to refuse a new trial on the ground of newly discovered evidence, consisting of testimony of two persons who had been summoned as witnesses and were present, but not called, notwithstanding that defendant and his counsel had been led to believe that such witnesses did not know any material facts.
    3. Criminal law @=>957(3) — Juror may not impeach verdict by showing that the evidence limited by court to one purpose was appropriated to others.
    A juror in a criminal case may not impeach his verdict by affidavit or testimony to the effect that evidence limited by the court to one purpose was appropriated by the jury to other; Code Or. Proe. 1911, art. 837, subd. 8, authorizing proof of misconduct of the jury by voluntary affidavit of a juror, not including such inquiry.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Ingenio Esquivel was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appellant was convicted of assault with intent to murder one Alex Coy. Punishment was assessed at three years in the penitentiary.

The evidence of Coy shows that he was invited by Louis Esquivel, brother of appellant, to a dance at the Esquivel home; that he accompanied Louis and appellant to a stable on the premises, where Louis began cuttingvhim with a razor, while appellant and another party whom Coy did not recognize were holding liim; that Coy drew his pistol and fired. In the fight they got down. When Coy got up appellant was cutting him with a knife. Witness Montel was in the house when the shot was fired; he immediately ran out to see what the trouble was, and met Coy, who was' in a bloody and weak condition; appellant was following him cutting or cutting at him with a knife. Montel stopped appellant and took the knife from him. Appellant denied participation in the affair, claiming that) he was outside of the yard during the fight. He was supported by other witnesses. The jury settled the conflict in the evidence in favor of the state.

Upon cross-examination of appellant the state elicited from him that he had theretofore been indicted for murder and assault to murder. The court limited this evidence to the question of appellant’s' credibility. Only two questions are presented for review. It is averred in the motion for new trial: (1) That the jury violated the instruction of the court, and used the impeaching evidence against appellant in denying him a suspended sentence; (2) that new evidence has been discovered since the trial to which appellant is entftled. There is attached to the motion affidavits of two witnesses to the effect that the witness Montel was in the house during the fight, and could not have separated the parties, and seen the things claimed to have been seen and done by him. It is apparent that the. alleged newly discovered evidence is purely impeaching in its character, for which a new trial‘will not be granted. Branch’s Ann. P. C. p. 129, § 202.

In addition to this the motion reveals facts which fail to bring the evidence within 'the rule of newly discovered testimony. The two parties making the affidavits had been .summoned as witnesses upon the trial, were' present, and appellant’s counsel talked to them. The motion alleges that—

“Prior to the trial and during the trial of this cause defendant and his counsel talked to the witnesses above named, and both defendant and his counsel were led to believe that said witnesses did not know any material facts to which they could testify.”

The presence of the witnesses at the trial, the opportunity to talk with them brings this case within the rule stated in Branch’s Ann. P. C. p. 130, § 204. It is not asserted or claimed that the witnesses misled or concealed from appellant’s counsel anything. The investigation as to their knowledge seems to' have been incomplete or the evidence would have been discovered during the trial.

Appellant attached no jurors’ affidavits to his motion, and appears to have been content to rest his averment of misconduct of the jury upon his sworn motion; but upon the hearing the state offered one juror whose testimony is before us. We do not think it supports appellant’s averments. No other jurors were called by him. We take occasion to say in this connection that we do not believe a juror may impeach his verdict by affidavit or testimony to the effect that evidence limited by the court to one purpose was appropriated by the jury to others. If subdivision 8, art. 837, O. O. P., should be extended to embrace such an inquiry, it “would unsettle every verdict in which there could be found upon the jury a man who could be induced to throw discredit on their common deliberations.” Wharton’s Crim. Proc., vol. 3, § 1787; Ruling Case Law, vol. 27, p. 896, §§ 68-73; Turner v. State, 61 Tex. Cr. R. 97, 133 S. W. 1052; Watson v. State, 82 Tex. Cr. R. 305, 199 S. W. 1113; Hamilton v. State, 64 Tex. Cr. R. 175, 141 S. W. 966; McCulloch v. State, 35 Tex. Cr. R. 268, 33 S. W. 230. In the last case cited two jurors had made affidavits that they did not understand what the court meant by his charge in some particular. The concluding words of Judge Davidson, considering the question, are:

“This court will not encourage the affidavits of jurors who, by stultifying themselves, seek by their affidavits to overturn their verdicts. This practice is getting entirely too common, and the lower courts should take occasion to correct it.” ⅜

The judgment is affirmed. 
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