
    GARZA v. STATE.
    (Court of Criminal Appeals of Texas.
    March 13, 1912.)
    1. Criminal Law (§ 956)— Before Whom Taken — Attorney.
    Affidavits of witnesses on a motion for a new trial were not legal, where taken by an attorney in the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2373-2391; Dec. Dig. § 956.]
    2. Criminal Law (§ 938) — New Trial — Newly Discovered Evidence.
    The evidence of the mother and father of the accused, who lived in the town where he was on trial, and with whom he made his home, was not newly discovered evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2306-2317;. Dec. Dig. § 938.]
    3. Criminal Law (§ 941) — New Trial — Cumulative Evidence.
    A new trial will not be granted for testimony which is merely cumulative.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2328-2330; Dec. Dig. § 941.]
    4. Criminal Law (§ 941) — New Trial — Grounds — Words and Phrases — “Cumulative Evidence.”
    Evidence is cumulative so as not to be ground for new trial which only multiplies witnesses as to one or more facts, or adds other particulars of the same general character.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2328-2330; Dec. Dig. § 941.
    
    For other definitions, see Words and Phrases, vol. .2, pp. 1783, 1784.]
    
      5. Criminal Law (§ 1086) — Appeal and Error — Matters Review able — Recobd.
    An objection that the court erred in compelling the defendant to go to' trial without sufficient time to prepare his defense was not reviewable where the record contained no motion for continuance or postponement, or any fact authorizing the matter to be reviewed.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2736-2769, 2772, 2794; Dec. Dig. § 1086.]
    6. Homicide (§ 141) —Indictment— Sufficiency.
    An indictment charging that the accused, with malice aforethought, did unlawfully assault a certain person “with intent to kill and murder” him, was sufficient to charge assault with intent to murder.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 237-249; Dec. Dig. § 141.]
    7. Cbiminal Law (§ 1128) — Appeal and Eeboe — Mattebs Reviewable — Record.
    Affidavits, certificates, and letters filed in the reviewing court, but not contained in the record, and not relating to any matter occurring on the trial, cannot be considered on appeal, though they relate to matters of seeming importance occurring subsequent to the trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2951-2953; Dec. Dig. § 1128.]
    Appeal from District Court, Bexar County; Edward Dwyer, Judge.
    Abel Garza was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    Will A. Morriss, R. C. Walker, Selig Deutschman, and S. G. Hamblen, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other oases see same topic and section NUMBER in Dee, Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted, tried, and convicted of making an assault on one Ed McKenney with the intent to murder him, and his punishment assessed at five years in the penitentiary.

Appellant insists he should be granted a new trial on account of newly discovered evidence. The attorney who represented appellant on the trial of the case took the affidavits attached to the motion'for new trial, the affidavits being made by the mother and father of appellant and Mr. Proudfoot.

This court has held in an opinion by Judge Davidson (Maples v. State, 60 Tex. Cr. R. 171, 131 S. W. 567) that counsel in a case cannot take the affidavits of witnesses on motion for new trial, and that such affidavits when taken by counsel in the case would not constitute a legal affidavit. It does not appear from the record that any evidence was offered in support of the allegations contained in the motion, and we do not know whether or not the court heard evidence in regard to these matters on hearing the motion for new trial or not.

But, if we considered the affidavits attached to the motion, two of them are by the mother and father of the defendant, living in the town where appellant was on trial, and at whose house appellant made his home, and this could not be considered as newly discovered evidence. In the light of the evidence in the record, the facts stated that it was expected to be proven by them would not probably change the result. Burns v. State, 12 Tex. App. 269; Mitchell v. State, 38 Tex. Cr. R. 170, 41 S. W. 816; Barber v. State, 46 S. W. 233; Campbell v. State, 29 Tex. 490.

As to the testimony of Mr. Proudfoot, stated in the affidavit, it would be but cumulative of the testimony of Mr. J. C. Hicks, who testified on the trial, and in Riojas v. State, 36 Tex. Cr. R. 182, 36 S. W. 268, this court has held that a new trial will not be granted for testimony which is merely cumulative.

Evidence is cumulative which only multiplies witnesses as to one or more facts or adds other circumstances of the same general character. Turner v. State, 37 Tex. Cr. R. 451, 36 S. W. 87; Price v. State, 36 Tex. Cr. R. 403, 37 S. W. 743; Hutto v. State, 7 Tex. App. 44; Shultz v. State, 5 Tex. App. 390; Kemp v. State, 38 Tex. 110. As before stated the affidavits are not in such condition that we would be authorized to act on them, but, if they were in the record in condition to bring the matter before us for review, they do not present such matters as should cause a reversal of the judgment. The ground “that the court erred in failing to charge the law of self-defense, there being ample evidence in this case to warrant the delivery of such charge,” is not supported by the record. The charge as copied in the record, and verified by the court’s signature, was a full and fair charge on self-defense, and instructed the jury to acquit defendant if the prosecuting witness had, made an attack which caused defendant to have a reasonable expectation or fear of death or serious bodily injury. Defendant testified to a direct attack, and the court submitted that issue.

The ground that the court “erred in compelling defendant to go to trial in this cause without giving him sufficient time to prepare his defense” presents no error.- The offense is alleged to have occurred on April 1st, and appellant was arrested that day. The indictment was returned on April 19th, while the trial did not take place until May 2d following. No motion for continuance or postponement is in the record, or any fact presented in a manner we can consider it, that would authorize us to review the matter.

.The ground that the indictment does not charge an offense is not well taken. The indictment reads; “That on or about April 1, 1911, in the county of Bexar and state of Texas, defendant, Abel Garza, with his malice aforethought, did unlawfully make an assault in and upon Ed McKenney, with the intent then and there to kill and murder the said Ed McKenney, contrary to the statute and against the peace and dignity of the state.” This form has been frequently approved by this court. Smith v. State, 31 Tex. Cr. R. 33, 19 S. W. 546, and cases cited in section 1027 of White’s Ann. Penal Code.

This disposes of all grounds presented in the motion for new trial.

Affidavits, certificates, and letters filed in this court, and not contained in the record, which relate to no matter occurring on the trial, cannot be considered by us. We must pass on the case as presented by the record on appeal, and if matters have occurred since the trial of the case, and the adjournment of the term of court at which appellant was tried, our statute provides no way for such matters to be made part of the record on appeal. They may present grounds for executive clemency, but the pardoning power or power to commute a sentence is not conferred on us, but we, under the law, only review the trial as had in the court below.

The court submitted the issues of assault to murder, aggravated assault, and self-defense, and applied the doctrine of reasonable doubt as to degrees, and the whole ease, and to which charge no exception was reserved either in the motion for new trial nor by bill of exceptions.

The judgment is affirmed.  