
    SCHWEINLE v. STATE.
    (No. 11430.)
    Court of Criminal Appeals of Texas.
    April 4, 1928.
    1. Fish i&wkey;15 — Conviction for attempting to catch fish by use of explosives held sustained by evidence.
    Evidence held sufficient to sustain conviction for unlawfully attempting to take and catch fish from a fresh-water stream by the use of explosives.
    2. Criminal law <&wkey;945(l) — Newly discovered evidence must be such as would likely change result, to warrant new trial.
    To entitle a party to a new trial upon the ground of newly discovered evidence, the evidence must be such as would likely change the result.
    3. Criminal law <&wkey;945(2) — Refusal of new: trial, in prosecution for catching fish by use of explosives, for newly discovered evidence that other people were seen coming from creek after explosion, held not error.
    .In prosecution for attempting to catch fish from fresh-water strea'm by use of explosives, In which' conviction was based on testimony as to presence of defendant near scene of explosion and his endeavor to escape, refusal of new trial on ground of newly discovered evidence that other persons proceeded away from stream after explosion held not error, since testimony did not necessarily contradict that upon which conviction was based, and probably would not have changed result of trial.
    4. Criminal law <©=>1038(4), 1056(1) — Court’s charge is not presented for review in misdemeanor case, where appellant fails to present special written instructions with exceptions to their refusal.
    Failure of appellant, in misdemeanor case, to present special written instructions and to point out refusal of such special instructions requested by bill of exceptions, presents nothing for review in connection with court’s charge.
    
      '• Commissioners’ Decision.
    Appeal from Montgomery County Court; W. H. Lee, Judge.
    Theodore Schweinle was convicted of unlawfully attempting to catch fish from a fresh-water stream by the use of dynamite and explosives, and he appeals.
    Affirmed.
    McCall & Crawford, of Conroe, for appellant.
    A. A. Dawson, State’s Atty., of Austin', for the State.
   MARTIN, J.

Appellant was ehargéd' by information with unlawfully attempting 'to ¡cake and catch fish from a fresh-water stream by the use of dynamite and explosives. Iiis punishment was assessed at 30' days’ confinement in .the county jail and a fine of $25.

It is insisted that the evidence was insufficient. Witness Dulaney was riding near' Spring creek bottom and observed three men in a Ford car going into the bottom. Shortly thereafter he heard two explosions. Thereafter he heard a third explosion further down the creek. Riding rapidly to the scene of the first two explosions, he found the water mud- . dy. The leaves on the trees above the water hole were wet and dripping with water. Several dead fish were strewn on top of the water, One was pulled out and was bruised and bloodshot; every bone in its body appeared to be broken, according to witness. Some paper wrappings from sticks of dynamite were on the ground near this water hole, and there was an old chunk in the water with a string tied to it. He went to the scene of the third explosion, got on his horse, and'started away, and hearing a Ford engine start, he ran and intercepted it and found three men in it, including appellant, apparently in a great hurry to get away. Appellant said, “Xou did’nt see us put dynamite in the creek.” The next morning witness, in company with another, followed three chains of tracks from where appellant’s car was located to the scene of the first explosions and down the creek to the scene of the other explosion, and dead fish were found there. These sanje tracks went from the last point back to the appellant’s car. A search above and below the scene of the different explosions revealed no other human tracks.

The court charged on principals and circumstantial evidence. In our opinion the evidence was sufficient and amply so to sustain the conviction.

Motion for new trial was made based upon newly discovered evidence. An affidavit of one William Craig was filed, to the effect that he was fishing near the mouth of and up and down Walnut creek, a tributary of Spring creek, on the day of the alleged explosion of dynamite; that he heard these explosions, and about 15 or 20 minutes thereafter he observed two cars of people coming out of Spring creek bottom and traveling the same route that he had come from Harris county and going in that direction. This testimony needs no analysis from us to show that it does not necessarily contradict the testimony of Dulaney, and in our opinion would not h*.ve changed the result of the trial if it had been available to appellant. “It is a well-settled rule, that to entitle a party to a new trial upon the ground of newly discovered evidence, the evidence must be such as would likely change the result.” Burns v. State. 12 Tex. App. 269; Hutchinson v. State, 6 Tex. App. 468; Vernon’s C. C. P. 1925, vol. 3, p. 13. The showing made for a new trial is deficient in other particulars not necessary to mention.

Complaint is made of the court’s charge. Appellant presented no special written instructions in tile low.er court covering the points which he now claims were not correctly charged upon, and in the absence of these, with a bill of exception to the refusal of such special instructions, there is nothing presented for review in this character of a case. This being a misdemeanor case, the appellant should have asked special instructions and carried forward his point by proper bills of exception to the refusal of such special instructions. Robbins v. State, 60 Tex. Cr. R. 523, 132 S. W. 770; Vernon’s C. C. P. 1925, vol. 2, p. 289.

No error appearing in the record, the judgment is affirmed.

PER CTJBIAM. 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. 
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