
    JONES v. STATE.
    (No. 4018.)
    (Court of Criminal Appeals of Texas.
    April 12, 1916.
    Rehearing Denied May 10, 1916.)
    1. Criminal Law &wkey;>1144(18) — Appeal—New Trial — Presumption.
    Where the judgment overruling defendant’s motion for a new trial on the ground of newly discovered evidence specifically states that the trial judge heard the evidence, but such evidence is not disclosed by the record, the Court of Criminal Appeals must presume that the action of the trial court was correct.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2901, 3036; Dee. Dig. <&wkey;> 1144(18).]
    2. Criminal Law <&wkey;939(l) — New Trial — Newly Discovered Evidence.
    In a prosecution for manslaughter, where an eyewitness of the killing, other than those called by the state, was in court, and, upon information from the district attorney that such eyewitness would not be called to the stand, defendant and his attorneys elicited the information that his testimony would not be altogether unfavorable to defendant, but, while testimony was still being introduced by defendant, such eyewitness informed him, to avoid being called as witness, that his testimony would not be in his favor, neither defendant nor his attorneys pressing the witness to learn further what his testimony would be, but dropping the matter, defendant was not entitled to a new trial as for newly discovered evidence of such witness.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2318, 2321-2323; Dec. Dig. &wkey;939(l).]
    Appeal from District Court, Gregg County; W. C. Buford, Judge.
    Josh Jones was convicted of manslaughter, and he appeals.
    Judgment affirmed.
    Lacy & Bramlette, of Longview, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

On a trial for murder, appellant was convicted of manslaughter. The testimony was amply sufficient to sustain the conviction. Appellant does not question this. It is unnecessary to recite the testimony.

The sole question is: Appellant claims he should have been granted a new trial, because of claimed newly discovered testimony, which he asserted in his motion for a new trial. Evidently the trial judge heard testimony when acting on this ground of his motion. The judgment overruling his motion specifically states that he heard evidence. What that evidence was is in no way disclosed by this record. It has often, and uniformly down to this date, been held that under such circumstances this court does, and must, presume that the action of the court was correct. It is unnecessary to collate the authorities, but see some of them cited in Ethridge v. State, 74 Tex. Cr. R. 638, 169 S. W. 1152.

But if we should take only appellant’s motion, and the facts disclosed thereby, and the affidavits thereto attached, it would show that the court’s action was correct. These show the state introduced some two or more eyewitnesses of the killing of deceased by appellant. It had another eyewitness in attendance, whom it did not introduce. Before appellant closed his testimony, upon inquiry to the district attorney, his attorneys were told that the state would not introduce said other eyewitness. This witness, upon inquiry theretofore of him by appellant or his attorneys, informed them that, if he were a witness for the state, his testimony would not be altogether unfavorable to appellant. When appellant himself approached him again, while the testimony was still being introduced by him, and after he had been informed that the state would not use said witness, he then in substance said to appellant to go on away from him; that his testimony would not be in his favor — this to avoid being used as a witness. All this occurred before appellant concluded the introduction of his testimony. Neither he nor his attorneys pressed the said witness to know further what his testimony would be, and dropped the matter, and did not introduce him as a witness. Under all the authorities, he would not be entitled to a new trial, even if his testimony would have been in appellant’s favor, under a claim that his testimony would be newly discovered. Gray v. State, 65 Tex. Cr. R. 204, 144 S. W. 283, Henson v. State, 74 Tex. Cr. R. 282, 168 S. W. 89, and the authorities cited in these two cases. See also the cases cited in Ver-mon’s O. C. P., under article 837, subd. 6, and Judge White’s collation of authorities under the same article of the statute.

The judgment is affirmed. 
      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     