
    McDOWELL v. STATE.
    (No. 8094.)
    (Court of Criminal Appeals of Texas.
    Jan. 9, 1924.
    Rehearing Denied Feb. 13, 1924.)
    1. Criminal law <@=5938(1)—Nature of newly discovered evidence to warrant new trial stated.
    Newly discovered evidence to warrant a new trial must be such as has come to accused’s knowledge since trial and could not have been secured at the trial by reasonable diligence and must be competent, material, probably true, affecting the merits, not cumulative, and such as would probably change the result on another trial.
    2. Criminal law <@=5419, 420(1)—Testimony that witnesses had heard another than accused admit killing held incompetent as hearsay.
    In a prosecution for murder, statements by witnesses that they had heard another than accused admit the killing held hearsay - and incompetent.
    3. Homicide <§=5319—New trial on ground of néwly discovered! evidence held unwarranted.
    Alleged newly discovered evidence by which it was sought to establish admissions of the killing by another than defendant held insufficient to warrant a new trial.
    Appeal from Criminal District Court No. 2, Dallas County; C. A. Pippen, Judge.
    Sam McDowell was convicted of murder, and he appeals.
    Affirmed.
    Currie McCuteheon, of Dallas, for appellant.
    Shelby S. Cox, Dist. Atty., of Dallas, Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Austin, for the State.
   DATTIMORE, J.

Appellant was convicted in criminal district court No. 2 of Dallas county of the offense of murder, and his punishment fixed at ten years in the penitentiary.

There is but one contention made on behalf of the appellant on this appeal, and that is that he should have been granted a new trial because of newly discovered evidence. In a general way the authorities sustain the proposition that to warrant a new trial on the ground that newly discovered testimony is presented, it is incumbent on the accused to satisfy the court that such testimony has come to his knowledge since the trial and that it was not known beforehand, and was not such as reasonable diligence could have secured at the trial; same must be competent, material to the issue and probably true, going to the merits and not merely cumulative, collateral, or to impeach a witness; and it must also appear reasonably probable that it would change the result upon another trial. Burton v. State, 9 Tex. App. 605; White v. State, 10 Tex. App. 167; Fisher v. State, 30 Tex. App. 509, 18 S. W. 90; Price v. State, 36 Tex. Cr. R. 403, 37 S. W. 743; O’Hara v. State, 57 Tex. Cr. R. 577, 124 S. W. 95; Haley v. State, 59 Tex. Cr. R. 338, 128 S. W. 1133.

Appellant attaches to his sworn motion for new trial the affidavits of his sisters, his uncle, and three other persons which present the matter relied upon as newly discovered testimony. There can be no serious contention that as to appellant, his mother, his sisters, or uncle,' that the matter relied upon was newly discovered. Upon his trial appellant relied upon an alibi and introduced his mother, sisters, and uncle, by whom he tried to establish that he was at his mother’s home some seven blocks from the scene of the homicide at the time same occurred. We observe from his testimony that he swore as a witness in his own behalf that the first he knew of the killing was when the officers came out to his mother’s home and arrested him, at which time he was sitting in his back yard with his mother and sisters. These same witnesses now testify by their affidavits that before the officers got to the house and after the shooting which they claim to have heard, one Herman Moore came through the yard and told appellant that he had got him, and that he had been there before that same afternoon telling him that he intended to kill deceased. The fact which they now seem to rely upon as excusing the disclosure of this testimony at the trial is that they were afraid Moore would kill appellant if he then told this, but this cannot give to the testimony any standing as being newly discovered. Two of the affidavits attached to appellant’s motion are of persons who undertook to swear that they heard Herman Moore admit, after the killing, that he was the party who did the killing. Such statements would not be admissible in evidence upon another trial of the accused. Greenwood v. State, 84 Tex. Cr. R. 548, 208 S. W. 662. Such declarations on the part of said affiants would be but hearsay and incompetent. The newly discovered testimony attributed to witnesses Oldridge and Jones would be but comulative of other testimony heard on the trial of this case. That of Oldridge would easily seem to be that of a witness who could have been procured by the exercise of reasonable diligence, as he says in his affidavit that he was at the house where appellant was on the afternoon before the killing and saw Herman Moore there. The testimony of Jones, as reflected by his affidavit, would be that he was about 75 feet south of the point of the shooting and that it was done by a black negro man with a cap on. He said that after the shooting was over the negro ran north. This would be but cumulative of other testimony introduced upon the trial of this case.

We do not think the learned trial judge abused bis discretion in refusing tbe motion - for new trial. We do not think it likely to produce a different result upon another trial. The affidavits attributed to appellant and his relatives are contrary to their testimony as given upon this trial and the other falls within some one or the other of the classes of testimony enumerated in the general proposition above laid down, as not being that character of evidence for which a new trial should be granted.

This record shows that on Sunday night before the homicide on Monday night, appellant and deceased had a difficulty. Deceased struck appellant in the head with a brick, knocking him down and caused pain and bloodshed. Appellant thereupon shot at deceased with a pistol. After the affray was over, appellant went to a doctor for treatment, and the latter placed a bandage around appellant’s head, which bandage was still on it when the officers arrested him after the shooting. Deceased was sitting out in front of a little store a few blocks from where appellant lived with his mother on Monday night. The shooting occurred at night. Directly after the shooting deceased made the statement that he was shot by appellant. A witness who was present at the scene of the shooting said that he saw the party who did the shooting run under a street lamp and that his head was bandaged. Two officers reached the scene within 10 or 15 minutes after the shooting and were told by deceased who shot him. They went at once to the home of appellant’s mother and found him there in the back yard and in an excited condition. They asked him what was the matter and he said he had been engaged in a shooting scrape. These officers denied the presence of the, uncle and sisters of appellant at said house at the time. It appears altogether unlikely that the introduction of such of the evidence set out in the affidavits as would be competent would produce a different result upon another trial. i

No error appearing, the judgment of the trial court will be affirmed.

On Motion for Rehearing.

Appellant ably and urgently insists that we erred in sustaining the action of the lower court in refusing a new trial because of newly discovered evidence. We have gone over the record again, but are unable to come to any different conclusion. Appellant, his mother, three sisters, and' an uncle named Wash McCarty, testified as witnesses for him on his trial. Each swore to facts relied on in support of the motion for new trial. Their affidavits as well as their testimony given on the trial have been again carefully examined. The scene of the shooting was a few blocks from appellant’s home. It is claimed that shortly after the shooting a negro named Moore ran through appellant’s yard and said, “I have got him,” meaning that he had killed deceased; also, that Moore had been there that afternoon and stated that he was going to kill deceased that night; also, that Moore had stated to two of the affiants subsequent to this conviction that he had killed deceased. The affidavits of said witnesses and their testimony as given on the trial present numerous and glaring contradictions, an enumeration of which would add nothing to this opinion. It is manifest that the proposition that Moore and not appellant did the killing was in no sense newly discovered by appellant or his witnesses. If they had disclosed this fact to appellant’s attorney, he would doubtless have taken steps to find out other facts, if such there were, corroborative of that theory. Not only were such steps not taken, but appellant swore positively on the trial that he did not know who did the killing, and none of his kinsfolk disclosed what they now say they knew about it. We know of no way in which this can be brought within the rule requiring that the evidence be in fact as well as allegation, newly discovered. How can it be asserted that diligence in discovering and presenting his defense was shown by the accused? He alleges in his motion that he and most of his .relatives knew these matters at the time of trial, but were afraid to disclose them because they thought Moore would kill appellant. There is nowhere any allegation that appellant did not know these facts, and none‘that he had not disclosed them to his attorney. There is no affidavit by appellant’s attorney supporting the motion. On page 127 of his Annotated P. C., Mr. Branch cites many cases supporting the followin£ proposition: .

“Where it appears that defendant or his counsel knew of the alleged new testimony at or before the trial, or that defendant knew that the proposed new witness was present when the transaction occurred, or where the alleged new testimony is of such a character as that defendant must necessarily have known of its existence prior to the trial, and the trial court in the exercise of its sound discretion has refused a new trial, the judgment will not be reversed to permit him to take advantage of his own negligence and obtain a new trial to get testimony which he should and could have had at the trial.”

We are unable to conclude that any of the material or competent evidence was newly discovered.

We note appellant’s criticism of our holding that newly discovered evidence, consisting of statements by Moore that he killed deceased, would not be admissible. Our views are further expressed in accord with those announced in this instance, in Walsh v. State, 85 Tex. Cr. R. 208, 211 S. W. 241; Sanchez v. State, 90 Tex. Cr. R. 518, 236 S. W. 734; Staton v. State, 93 Tex. Cr. R. 356, 248 S. W. 359. The ease of Chenault v. State, 83 Tex. Cr. R. 104, 201 S. W. 657, is easily distinguished. The only evidence in any way connecting tlie accused with the crime in that case came from admittedly tainted sources. The main- state witness admitted his commission of a burglary in which he implicated the accused. The only corroborating witness was under numerous felony indictments. In connection with the motion for new trial, it was shown that both of said witnesses since the conviction of Ohenault had pleaded guilty, one to eight burglary charges and the other to nine. Three witnesses made affidavits in support of the motion for new trial affirming that the main state witness had told them that he and a party other than Ohenault had committed the burglary upon which the conviction was had. Under these circumstances, we held the court should have granted a new trial. The evidence was newly discovered and admissible. There was o question in the case as to the admissibility of a confession or unsworn statement of an outsider to the record, and manifestly the proposition was not in the mind of the court when we wrote. There is nothing in that case at all parallel to the instant case, and what we said in that case was with reference only to the case then before'us and cannot be used to support the contention of appellant in this case.

The motion for rehearing will be overruled. 
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