
    SCOTT v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 24, 1912.)
    1. Criminal Law (§ 939) — -New Trial — Newly Discovered Evidence — Diligence.
    An assault was committed in March, an indictment being returned in May, and trial had in July. The accused requested no postponement or continuance in order to learn the names of parties who witnessed the assault. Held that, having ascertained those names after the trial, he was not entitled to a new trial on the ground of newly discovered evidence; it appearing that he knew from the time of the alleged assault that other persons saw the affair and exercised no proper diligence to obtain their testimony.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 2318-2323; Dec. Dig. § 939.)
    2. Criminal Law (§ 958) — New Trial— Newly Discovered Evidence — Affidavits.
    Affidavits of witnesses upon whose newly discovered testimony a new trial is requested will not be considered when taken before defendant’s attorney.
    [Ed. Note. — For other cases, see Criminal Law, Dee. Dig. § ’958.]
    3. Homicide (§ 310) — Triai>-Aggravated Assauli^-Instructions.
    In a prosecution for assault with intent to kill, an instruction that if defendant stabbed prosecutor, but that prior thereto prosecutor, by his conduct, caused defendant to believe that ho was in danger, and that prosecutor was about to draw a knife and threw bricks at defendant, but that the circumstances were not sufficient to warrant a belief on the part of defendant that he was in danger of death or serious bodily harm, but that the conduct of prosecutor aroused in him á sudden passion, anger, rage, or resentment, and under the influence thereof he cut prosecutor, his offense would be aggravated assault, was not erroneous, as requiring the jury to find more than one thing to constitute an adequate cause.
    [Ed. Note. — For other cases, see Homicide, Dec. Dig. § 310.]
    4. Criminal Law (§ 822) — Instructions.
    The charge in a criminal case must be considered as a whole.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1990-1995, 3158; Dec. Dig. § 822.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    John Scott was convicted of assault with intent to murder, and appeals.
    Affirmed.
    J. S. Baker, for appellant. C. E. Lane, Asst. Atty. Gen., for tbe State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Tbe appellant was indicted and convicted of making an assault with intent to murder, and bis punishment assessed at eight years in the penitentiary.

One ground of bis motion on which he seeks a reversal of the case is alleged newly discovered evidence. The offense in this case is alleged to have been committed in March, at which time he was arrested. The indictment was returned in May, while the trial did not occur until July 14th. Defendant alleges that he was a stranger in Dallas, and states that, while he knew other parties were present, he did not know their names, and for this reason did not have them summoned. We fail to see that by the use of the same diligence ..before the trial, as was used subsequent to the trial, the names of the parties could not have been learned as well before as after the trial. No motion for a postponement or continuance was filed, setting up these facts and requesting time to learn the names of the parties; in fact, he had from March until July to learn the names, and which he did not do, yet by the affidavits filed it appears he did learn their names on the very day that the jury returned a verdict of guilty. In Carrico v. State, 36 Tex. Cr. R. 618, 38 S. W. 37, this court holds that a new trial will not be granted for newly discovered evidence which could have been discovered by the use of ordinary diligence. In this case the motion discloses that defendant knew all' that he now claims to know, except the names of the witnesses, and this could have been discovered as well before as after the trial.

There is another matter to which we will here call attention that attorneys may avoid such matters in the future. The affidavits of the witnesses were taken by an attorney in this case. This is not permissible under our practice. In Maples v. State, 60 Tex. Cr. R. 171, 131 S. W. 567, Judge Davidson discusses this question and cites the authorities holding that this court will not consider affidavits taken by interested counsel, and for this reason we could not consider this ground in the motion.

The court fairly and fully presented the issue of aggravated assault, and it is not subject to the criticism that the charge required them to find more than one thing to constitute adequate cause. The court told the jury “that an assault or attempt to strike defendant with a brick or other missile, or an attempt to draw a knife, or other weapon on the defendant, would be adequate cause,” and told them: “You are instructed that if you believe from the evidence that the defendant did cut or stab the said Alfredo Estrada with a knife, but you further believe from the evidence that just prior to such cutting the said Estrada by his acts and conduct caused the defendant to believe that he was in danger of unlawful attack from tlie said Estrada, or that the said Estrada, by his acts and conduct, caused the defendant to believe that the said Estrada was about to draw a knife, or other weapon upon him, or that the said Estrada intended to draw such weapon upon him, and you further find, that, after this, the said Estrada undertook to strike him with bricks or other missiles, or by his acts caused the defendant to believe that he intended to strike or injure him with bricks or other missiles, and you believe that the circumstances were not sufficient, when coupled with all the other antecedent circumstances and circumstances at the time, to justify the belief on the part of the defendant, viewing the same as they reasonably appeared to him, from his standpoint, that he was in danger of death or serious bodily injury at the hands of the said Estrada, but that the acts and conduct of the said Estrada, if any, connected with all the facts and circumstances in the case, aroused in the mind of the defendant a sudden passion of anger, rage, sudden resentment, or terror, and acting under the influence of such passion, if any, and not in his own justifiable self-defense, as self-defense has been defined to you in this charge, he cut or stabbed the said Estrada with a knife, then his offense would not be of a higher grade than aggravated assault.”

The other allegation in the motion is that the court erred in the charge in making self-defense depend entirely upon the acts and conduct of Estrada alone. If this criticism of the charge was correct, it might have some foundation in the testimony. But we must read the charge as a whole, and we find the court instructed the jury: “On the. subject of self-defense, you are charged that, when there is more than one assailant, the defendant has the right to act upon the hostile demonstration of either one or all of them, and to kill either one of them, if it reasonably appears to him that they are present for the purpose and acting together to take his life or do him some serious bodily injury.” Not only did the court thus charge lie jury in his main charge, but at the request of defendant he gave the following special charge: “You are instructed that if the defendant at the time of the assault upon Alfredo Estrada (if such an assault was made) had reasonable grounds to believe that an attack was being made upon him by said Estrada and other Mexicans, which reasonably led the defendant to believe that he was in danger of death or serious bodily harm at the hands of said Mexicans, he cut the said Estrada with a knife in the necessary defense of his person, then you will find the defendant not guilty.” The ■ jury found the defendant guilty of an assault., to murder, although the court submitted the issue of aggravated assault and self-defense, and, in addition to the charge that the jury must find the specific intent to kill before they would be authorized to find defendant guilty of assault to murder, he ¿t the request of defendant gave them, the following special charge: “You are instructed that the fact that defendant inflicted the wound with an instrument reasonably calculated to produce death (if he did so do) is not within itself sufficient to establish an intent to murder. It might be sufficient to infer an intent to kill, and if, from all the testimony and circumstances in the case, you should find that had death resulted from such wound it would not have been murder, then you will not find the defendant guilty of assault with intent to murder.”

In his main charge he also gave a charge on reasonable, doubt on the different degrees submitted, and fairly and fully submitted every issue in the case.

Judgment affirmed.  