
    PARROTT v. STATE.
    (No. 8858.)
    (Court of Criminal Appeals of Texas.
    June 10, 1925.
    Rehearing Denied Oct. 21, 1925.)
    1. Criminal law &wkey;939(2) — Alleged newly discovered evidence held not ground for new trial.
    Alleged newly discovered evidence, consisting of testimony of one whom defendant knew to be eyewitness of shooting, with which he was charged, held not grounds for new trial, in absence of previous effort to produce such witness.
    2. Criminal law <&wkey;>ll59(2) — If there is evidence warranting jury’s verdict of guilty, appellate court will not disturb it.
    If there is evidence warranting jury’s verdict of guilty, appellate court will not disturb it.
    3. Homicide <&wkey;257(l) — Evidence held to sustain conviction for assault with intent to murder.
    Evidence held to sustain conviction for assault with intent to murder.
    Commissioners’ Decision.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Hollis Parrott was convicted of assault With intent to murder, and be appeals.
    Affirmed.
    Adams & Moore, of Nacogdoches, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for tbe State.
   BAKER, J.

The appellant was indicted, tried, and convicted in tbe district court -of •Nacogdoches county for assault with intent to murder Easom Wood, and bis punishment assessed at two years’ confinement in tbe penitentiary.

The evidence, briefly stated, shows tbe appellant and prosecuting witness were young men about 18 or 20 years of age, and together with two negroes were moving clay in wheelbarrows at a brickyard, and that appellant reported to tbe manager of tbe brickyard that' tbe prosecuting witness and one of tbe negroes were not doing their part of tbe work, and tbe manager reprimanded said parties and informed them that they would have to do their part of tbe work they were •then doing. Immediately thereafter, it is admitted by tbe prosecuting witness, Easom Wood, that he remarked in tbe presence of appellant: “I would like to know who did it (referring to reporting them). Whoever tbe God damned lying son of a bitch was, I will whip him or be will whip me.” Tbe appellant contends that,-in addition to using said language,' or similar language, be made tbe threat that be would kill said person. Within a few minutes thereafter, the appellant left the place where they were working and went about three-quarters of a mile and borrowed a single-barreled shotgun from tbe lady of tbe bouse, and told her that be wanted same for tbe purpose of; killing a mad dog, and he immediately returned to tbe brickyard, and, when within about 57 feet of tbe prosecuting witness, Wood, be shot him with said gun from tbe hips down to about tbe knees, with what tbe witness stated was No. 4 “squirrel shot.” Tbe record further discloses that said shot penetrated tbe skin and were afterwards picked out of tbe body, of said witness by tbe physician, and from said injuries tbe witness Wood was confined to bis bed several days. Tbis is a sufficient statement of tbe facts for tbe purpose of tbis opinion.

Tbe record further discloses that tbe appellant did not obtain tbe services of an attorney to represent him until after bis conviction ; be then employed counsel, who prepared and filed a motion for a new trial and perfected tbe appeal to tbis court.

Appellant’s counsel in their brief frankly admit that there are only two questions upon wbicb they base their contention for reversal of tbis case. Tbe first is based upon “newly discovered evidence,” and in support of said motion for new trial they introduced testimony from one of tbe two negroes above mentioned who was working with tbe prosecuting witness and tbe appellant at tbe time of tbe shooting. Tbis proposed testimony could not have fallen under any of tbe rules announced by tbis court as being newly discovered evidence for tbe reason that the appellant knew that tbis witness was there and saw him, and hy the slightest diligence, if he did not know, conld have ascertained what this witness ■' would have testified to, if anything, in his behalf. There was no error in the action of the court in refusing to grant the motion for new trial for this testimony.

This leaves this court to the other and only question to consider, and that is whettíer or not the testimony warrants the action of- the jury in finding the defendant guilty of assault with intent to murder. The court in his charge submitted to the jury under appropriate instructions the law applicable to assault with intent to murder, and the jury in response thereto returned their verdict finding that defendant was guilty of said assault with intent to murder. If there was sufficient evidence authorizing such finding of the jury, this court would not be authorized to disturb same. We think the evidence in this case was sufficient for the jury to base their verdict upon. Hatton v. State, 31 Tex. Cr. R. 686, 21 S. W. 679; Luttrell v. State, 70 Tex. Cr. R. 183, 157 S. W. 157; Gillum v. State, 83 Tex. Cr. R. 396, 204 S. W. 225.

In the Hatton Case, supra, Judge Hurt stated:

'“The evidence shows conclusively, that whether the shot used were sufficiently large to take the life of Johnson, appellant greatly desired and intended to do so. When in a case the question arises as to whether the accused intended to' kill, the means used by him may be looked to. If a deadly weapon is used in a deadly manner, the inference is almost conclusive that he intended to kill; on the other hand, if the weapon was not a dangerous one, or was not used in a deadly manner, the intention _ must ■ be established by other facts. !But it would be a monstrous doctrine to hold that, because in fact the accused did not have the ability to kill, therefore he did not intend to kill.”

In the Gillum Case, supra, the facts are somewhat similar to the instant casé, and Presiding Judge Davidson quotes the Hatton Case, and further states: -

“The intent will be gathered from the facts, and there is sufficient evidence on this question to justify the jury to reach the conclusion that his purpose was to kill. * * * We think the facts are sufficient, and the jury was authorized under the evidence to convict of assault to murder or aggravated assault.”

From the facts disclosed by the record of this case, it is clearly shown that appellant used a deadly weapon in a deadly manner, and, in view of the authorities above cited, we are of the opinion that the’ jury was authorized to return a verdict finding the defendant guilty of assault with intent to murder, and this court is not authorized to disturb the verdict of the jury under such circumstances.

We are therefore of the opinion that the judgment of the trial court should be, and the same is hereby, affirmed.

PER • CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal. Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, ,1.

The motion is based on» two grounds — one that we erred in what we said concerning the alleged-newly discovered evidence; and the other being based on the-insufficiency of the testimony. The record' discloses that the shooting by appellant,, which is the basis of the prosecution, took place when there were a number of men in-the immediate vicinity. The alleged newly discovered witness was the nearest man to-the parties, and was well-known to appellant. We cannot ingraft upon the practice in this state the proposition that, because a. man sees fit to defend himself, he shall not be held to the ordinary rule of diligence im his efforts to procure the presence of witnesses. No subpoena was issued for the alleged newly discovered witness, and apparently no effort made to obtain his-testimony,, notwithstanding it is evident that its materiality must have been known to appellant.

Nor are we able to agree with the contention made that the evidence does not support the judgment. The trial court told the jury that, in order to convict, they must not only believe that appellant made an assault upon Easom Wood, but that he had the specific intent at the time of making such assault, if he did, to kill said Wood. The proof on behalf of the state showed that, after Wood had made some statements which appellant construed as insulting to him, he went away and procured a shotgun in which was a shell loaded with No. 4 shot, and fired it point blank at the injured party, at a distance some 60 or 70 feet.

The court having appropriately charged the jury, and they having concluded under the charge that this evinced a present determination on the part of appellant to kill, we are not able to say that their judgment is-not supported by the testimony, and the motion for rehearing will be overruled. 
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