
    JOHNSON v. STATE.
    (No. 6765.)
    (Court of Criminal Appeals of Texas.
    April 12, 1922.
    Rehearing Denied May 31, 1922.)
    1. Criminal law <8=^939(2, 4) — information that witness as to facts relied on for new trial would not testify thereto insufficient to excuse lack of diligence to secure attendance or failure to apply for continuance.
    That affiant advised defendant’s attorney on the morning of the trial that defendant’s wife would not testify as to facts relied on for a new trial was insufficient to excuse defendant’s lack of diligence to secure her attendance or failure to apply for a continuance to obtain her testimony as to such facts, which he testified she had told him, where the source of affiant’s information was not disclosed.
    2. Criminal law <8=1144(7) — To support denial of continuance to procure testimony, presumed court found witness was not subpoenaed.
    'if necessary, to support a ruling on controverted facts denying an application for a continuance to obtain testimony, it will be presumed that the court found that the witness had not been subpcenaed.
    3. Criminal law <S=»938(I) — Newly discovered evidence must have come to accused’s knowledge since trial, and failure to discover it sooner must not be due to want of diligence.
    . A motion for new trial on the ground of ■newly discovered evidence must show that such evidence came to accused’s knowledge since the trial, and that his failure to discover it sooner was not due to want of diligence.
    4. Criminal law 156(3) — To warrant review abuse of discretion in denying new trial must be shown.
    To review a ruling denying a motion for new trial on the ground of newly discovered evidence, an abuse of the trial judge’s discretion must be shown.
    5. Criminal law 1098 — Statement of facts in question and answer form is insufficient.
    A statement of facts,. consisting of the reproduction of the stenographer’s notes in question and answer form, is insufficient; the law requiring that it be in narrative form.
    Appeal from District Oourt, Henderson County; W. R. Bishop, Judge.
    Jesse Lee Johnson was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    Miller & Miller, of Athens, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for the offense of assault with intent to murder; punishment fixed at confinement in the penitentiary for a period of two years.

The facts, from the state’s standpoint, go to show that the appellant shot Phillips without provocation at the time. He staged immediately after the shooting that it was on account of Phillips’ misconduct towards appellant’s family.

Appellant’s theory, as developed from his testimony, was that he had been informed by his wife that Phillips had been guilty of insulting conduct towards her; that he had threatened to kill her and the appellant. He went, to see Phillips where he was at work. Appellant testified:

“ * * * And -yyjjen j gpoke to Mm, he started like he was coming toward me, and I shot him.”

Appellant sought a new trial because of alleged newly discovered evidence. The action of the trial court in denying the motion is made the sole ground of complaint in this appeal. The wife of the appellant was not present at the trial, and the newly discovered evidence is her testimony to the effect that she had communicated to the appellant the fact showing Phillips’ misconduct towards her and his threats to 'take her life and that of the appellant. Whether she was subpoenaed or not was a controverted issue upon hearing the motion. She made an affidavit that she would have given the testimony if present at the trial, and that she was absent because of sickness. She resided 21 miles from the county seat.

No effort was made to continue the case on account of her absence. Explanatory of this and in support of the contention made by tlie appellant that her testimony is to he classified as newly discovered evidence, there appears attached to the motion the affidavit of Tatum to the effect that on the morning on which-the trial began he advised appellant’s attorney that appellant’s wife would not give the testimony in question. That this information was received from Tatum, and that because of it no application for continuance was made, is verified by the affidavit of appellant’s attorney. The affidavit does not disclose upon what authority or information Tatum acted in making the report mentioned to appellant’s counsel.

We are constrained to regard the record inadequate to justify overturning the verdict. The only mitigating fact interposed was the information which the appellant had received from his wife touching the conduct and language of Phillips towards her. He testified upon the trial that his wife had told him these things. It is obvious therefore that before the trial he was aware that she could have testified to them. Assuming that she had been subpoenaed as a witness and was unable to attend the trial, an application for a continuance would probably have resulted in a delay of the trial in order to obtain her testimony. The information given by Tatum, without disclosing the source of it, was not, in our judgment, sufficient to excuse diligence on the part of the appellant to secüre the attendance of his wife at his trial. If an application to continue had been made and overruled and complaint here made of the action of the court, a different question would be presented. The trial judge may have decided on the controverted facts that the witness had not been subpoenaed at all. If such finding was necessary to support his ruling* it would be incumbent upon this court to indulge the presumption that he did so conclude. We do not deem it necessary, however, to make this assumption. The evidence was not newly discovered, and the statement of Tatum was insufficient to excuse diligence to secure the testimony. The subject of newly discovered evidence has been so often before the court, and the rules touching it are so nr'mly established and so pertinently bear upon the merits of the present matter, that we deem a detailed reference to the authorities inexpedient and unnecessary. These rules, in substance, require that the motion for new trial show that the evidence has come to the knowledge of the accused since the trial, and that the failure to sooner discover it was not due to his want of diligence. Burns v. State, 12 Tex. App. 269, and other cases in Vernon’s Texas Crim. Statutes, vol. 2, p. 777. Eor this court to review the action of the trial judge in denying the motion for new trial upon the ground of such newly discovered evidence it is essential that an abuse of his discretion be shown. Shaw v. State, 27 Tex. 705, and other cases listed in Vernon’s Texas Crim. Statutes, vol. 2, p. 778. To determine the materiality of the newly discovered evidence, an acquaintance with the facts which were before the court would obviously be necessary. The facts, that is, the evidence developed upon the trial, are not legally before us. Such-statement of them as we have made is from the document filed and denominated as a statement of facts, but it consists of the reproduction of the stenographer’s notes in' question and answer form. The law requires that it be in narrative form. This has been declared in numerous instances. Ferguson v. State, 83 Tex. Cr. R. 273, 202 S. W. 733; Mooney v. State, 73 Tex. Cr. R. 122, 164 S. W. 828; Felder v. State, 59 Tex. Cr. R. 144, 127 S. W. 1055; Hargrave v. State, 53 Tex. Cr. R. 147, 109 S. W. 163; Fox v. State, 53 Tex. Cr. R. 150, 109 S. W. 370.

Finding no error in the record, the judgment is affirmed. 
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