
    BARRETT v. STATE.
    (No. 8714.)
    (Court of Criminal Appeals of Texas.
    Nov. 19, 1924.
    State’s Rehearing Denied Jan. 14, 1925.)
    1. Homicide <&wkey;49 — Expression “G- d — — bastard’* held not insult to female relative within statute on manslaughter.
    Deceased’s calling defendant a “G-d — — bastard” held not an insult to a female relative within statute on manslaughter.
    2. Homicide <&wkey;3l9 — Newly discovered evidence that deceased could, have insulted defendant’s wife held material and ground for new trial.
    Where defendant’s wife testified that deceased had insulted her at certain time and place, and that she had informed defendant thereof, and where state’s witness testified that at such time deceased was at place other than that specified by wife, newly discovered evidence showing that state’s witness was mistaken and that deceased might have been at place specified at such time, held material and ground, for -new trial.
    3. Criminal law <&wkey;938(4) — Attendance of witness at trial does not prevent his testimony from being newly discovered.
    Attendance of witness at trial does not necessarily foreclose inquiry as to whether facts subsequently found to have been within his knowledge were in truth as to accused newly discovered, but the true tfest is whether existence of such evidence would have been discovered sooner by exercise of proper diligence.
    4. Criminal law <&wkey;939(2)— Failure to discover witnesses, to show rebuttal witness mistaken, held not lack of diligence.
    Where incident testified to by rebuttal witness showing deceased’s whereabouts at certain time was unknown to defendant, and witness testified that only he and deceased were present, failure to discover witnesses who could testify that rebuttal witness was mistaken as to time such incident occurred, held not lack of diligence, though one of new witnesses was at trial and another had been subpoenaed.
    5. Criminal law &wkey;942(l)NNewly discovered evidence held not mere impeaching evidence when showing witness mistaken about material matter.
    Where defendant’s wife testified that deceased had insulted her at certain time and place, and that she had informed defendant thereof and state’s witness testified that he was with deceased at such time, at place other than that specified by wife, newly discovered evidence showing that state’s witness was mistaken held not mere impeaching evidence.
    Appeal from District Court, Bell County; Lewis H. Jones, Judge.
    John W. Barrett was convicted of murder, and be appeals.
    Reversed and remanded.
    G. M. Pelts, of Belton, and W. W. Hair, of Temple, for appellant.
    Pew Brewster, Dist. Atty., of Temple, J. W. Thomas, of Belton, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for murder with an assessed punishment of 20 years’ confinement in the penitentiary.

Appellant and deceased lived near each other, both being farmers. Appellant had been getting drinking water from a well situated on land belonging to deceased, but just outside the fence. A short time before the homicide appellant had impounded an animal belonging to deceased and made a small charge therefor, which seems to have incensed deceased and he forbade appellant from longer getting water from the well, and this angered appellant. While plowing in his field, using a riding plow, deceased was shot by appellant who was standing near the center of the road some 25 feet away from deceased. It is the theory of the state that deceased was on his plow at the time the §hot was fired, and that the motive prompting the killing was the act of deceased in having stopped appellant from getting water from the well. Appellant and his son were the only eyewitnesses to the killing. The defense evidence raised the issue that' the conduct of deceased towards appellant for a considerable period of time had been overbearing, and that a few days before the homicide he, in a conversation with appellant’s wife relative to the impounded animal, had used language of an insulting character which she had communicated to her husband, and that the killing occurred upon the first meeting after he had learned thereof. Appellant and his son testified that, as they were going down the road in their wagon to work on their farm,' deceased hailed them, and after getting off his plow cursed appellant and made a demonstration which caused appellant to believe that he was about to draw a weapon, and that the killing occurred under these circumstances. The disposition we find necessary to make of the case renders a more detailed statement of the facts useless.

Complaint is made at the ruling of the court in admitting and excluding certain evidence. We find no merit in the bills .bnng-ing these matters forward for review, and think the questions are not of such importance as to demand discussion at length.

Many objections were presented complaining of the charge on manslaughter. Examination of it reveals that the learned trial judge covered in such instructions every phase of manslaughter raised by the evidence, and apparently guarded appellant’s rights in all respects. Appellant and his son testified that at the ■ time of the killing deceased called appellant a “G-d-- bastard.” The proposition* that this expression was an insult to a female relative under our statute on manslaughter is untenable. The decisions are all against ,such contention. Barbee v. State, 34 Tex. Cr. R. 129, 29 S. W. 776; Davis v. State, 57 Tex. Cr. R. 545, 124 S. W. 104; Trevino v. State, 72 Tex. Cr. R. 91, 161 S. W. 108; Ahearn v. State, 78 Tex. Cr. R. 151, 179 S. W. 1150. Many other authorities are collated under the second paragraph of section 2010, Branch’s Ann. Pen. Code, and in the notes under article 1133, Vernon’s Penal Code.

A most serious question arises upo,n appellant’s plea that the court committed error in declining to grant him a new trial upon the ground of newly discovered evidence. Appellant contends that at most he should have been convicted of no more than manslaughter because deceased had been guilty of insulting conduct towards appellant’s wife, information of which had been conveyed to accused by the wife, and that the killing occurred upon the first meeting thereafter. The court gave a specific charge upon manslaughter under this phase of the case.

Appellant had found in his field, and had impounded, an animal belonging to deceased. Appellant’s wife testified that on Friday morning between 9 and 10 o’clock, while her husband was absent, deceased came to her 'home to see about this animal; that he used denunciatory language towards the family generally, and gave expression to language claimed to have been an insult, to her; that she communicated this to her husband on Sunday. The killing occurred on Wednesday following. The state called as its last witness in rebuttal Buther Bryant, with whom deceased lived. This witness testified that on the ■ Friday morning, at the time fixed by appellant’s wife as the occasion of the insult,. deceased was with witness, and that they at that time pulled out of a bog a red cow which belonged to deceased; that witness was with deceased all day Friday until about dark; that no one was present when the animal was taken from the bog save witness and deceased.

Appellant urges as material newly discovered evidence upon the phase of the case just mentioned the testimony of T. N. Bryant, Jim Polston, and Pierce Rogers. Polston lived in Falls county, but on Thursday and Friday prior to the homicide was on a visit to Rogers in Bell county. By Polston’s affidavit it is shown that on the Friday morning in question he and Rogers went to haul some water from the well on deceased’s place, and were requested by T. N. Bryant to help him ana deceased pull a cow out of a bog; that no one was present when this was done save witness (Polston), Rogers, T. N. Bryant, deceased, and a small boy. The affidavit of T. N. Bryant is to the same effect, and states positively that Luther Bryánt was not present on Friday but that on Saturday morning he (T. N. Bryant) had helped Luther Bryant and deceased pull this same red cow out of the bog again at or near the same point where she was taken out on Friday morning. T. N. Bryant further made affidavit that after they got the cow out of the bog on Friday morning deceased left in his car between 9 and 10 o’clock going towards Plolland, which route would take him by appellant’s house. The statement of Rogers is in substance the same as that of T. N. Bryant. Rogers’ statement is not sworn to, but is witnessed by W. W. Hair and John G. Wilson. The explanation is made that Rogers would swear to the statement, but that no notary public was present or available, and that Hair declined to take the affidavit, being one of appellant’s attorneys.

Counsel representing the state suggests that, if the proposed evidence be newly discovered, it is not of such character as would have .justified granting a new trial because the issue was not whether deceased uttered the insulting words, but whether appellant had been informed by his wife that such language had been used. To adopt such suggestion would be manifestly unfair to accused. The evidence of Luther Bryant, if true, placed deceased where he could not have insulted appellant’s wife as Claimed by her, and the result of his evidence was to discredit her statement relative to the matter, and was calculated to impress the jury that no such insult as claimed by her was offered, and that this phase of the defense was fabricated. If the jury accepted the statement of Luther Bryant and believed that no insult had been offered to the wife they would have • given little credence to her story about- communicating to her husband information about a matter which the jury believed had never occurred.

T. N. Bryant was present at the trial, and the point is made that as to him at least diligence is wanting to bring his proposed testimony within the scope of newly discovered evidence. The general rule is as stated by Mr, Branch, section 204, of his Ann. Pen. Code, to wit:

“Where the proposed witness was present at the trial defendant cannot successfully set up as newly discovered testimony facts elicited after the trial which he should have discovered sooner.”

But the mere fact that a witness was in attendance on the trial does not necessarily foreclose an inquiry as to whether facts subsequently found to have been within his knowledge were in truth as to accused newly discovered. Strickland v. State, 13 Tex. App. 311; Clark v. State, 29 Tex. App. 431, 16 S. W. 171; Johnson v. State, 51 Tex. Cr. R. 605, 103 S. W. 893; Black v. State, 71 Tex. Cr. R. 621, 160 S. W. 722. The true test is, could the existence of such evidence have been discovered sooner by the exercise of proper diligence? It appears from the testimony heard upon the motion that process had been issued by appellant for the witness Rogers. If served he was not shown to have been present at the trial. The existence of such a man as Polston does not seem to have been known to the attorneys until after the trial. Information had come to tiie attorneys that perhaps Rogers and T. N. Bryant had heard deceased make threats against appellant, and it was upon that issue process had been secured for them. No such incident as testified to by Luther Bryant in which he located deceased at a place other than appellant’s home at the time of the alleged insult was known to accused, or any of his attorneys, until the evidence from Bryant came into the case. If this witness had sworn that others were with deceased and witness when the incident of pulling the cow from the bog occurred, then certainly it would have been required of appellant that inquiry be made of such other parties about the matter, if present at the trial; but Luther Bryant asserted that no one was present but himself and deceased. The first information reaching attorneys for accused that evidence existed contradictory of Luther Bryant’s statement, was when Rogers, after the trial, informed W. W. Hair that he (Rogers) had heard about Luther Bryant’s evidence as to the whereabouts of deceased on the Friday morning before the killing, and then told said attorney the things which appear in the statements from Rogers, Polston, and T. N. Bryant. Under the peculiar facts, and the manner in which this incident came into the case right at its close, we fail to discover any lack of diligence in ascertaining the existence of the new evidence. Its materiality seems obvious. If Luther Bryant’s evidence was accepted by the jury as true the very foundation of appellant’s manslaughter plea based on insults to his wife had' collapsed. Upon this issue the new evidence was important and might upon another trial produce a different result.

The proposed evidence cannot be classed as impeaching only. There is a clear distinction between testimony which could only impeach a witness who had testified on the trial, and evidence showing that such witness was mistaken about a matter material to the state’s case. Heskew v. State, 14 Tex. App. 606; Estrada v. State, 29 Tex. App. 169, 15 S. W. 644; Johnson v. State, 51 Tex. Cr. R. 605, 103 S. W. 893. It may be that Luther Bryant whs mistaken as to the day when he helped deceased'pull the animal from the bog; Whether his testimony arose from a mistake or not, that it was upon a point material to the state’s case cannot be • doubted, for by his evidence the state proposed to break down the defense upon a vital issué in the case.

Being of opinion that a new trial should have been granted for the reasons discussed, the judgment is reversed and the cause remanded.

On Motion for Rehearing.

MORROW, P. J.

In the light of the motion for rehearing and the interesting oral argument in support thereof, we> have reexamined the questions presented in the record and are constrained to conclude that the proper disposition of the case was made in the original opinion.

The fact that the written statement attached to the motion for new trial as to one of the witnesses whose testimony is relied upon is newly discovered is -not, upon the present record, conclusive against the propriety of considering the testimony. It is shown without controversy that the statement was made by the witness, and the absence of affidavit is explained upon reasons which are deemed satisfactory. However," attached to the motion were the affidavits of two other witnesses, the testimony of whom, as pointed out in the original opinion, was such as to entitle the appellant to a new trial.

The state’s motion for rehearing is overruled. 
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