
    GIBBS v. STATE.
    (No. 9034.)
    (Court of Criminal Appeals of Texas.
    Feb. 4, 1925.
    1. Homicide <®=»166(!) — Question affecting defendant’s motive in making apparently unprovoked attack held not error.
    Ip prosecution for assault with intent to murder, where evidence indicated an unprovoked attack, question asked defendant, in effort to arrive at his motive, as to whether he had undertaken the assault so that he might rape the woman with complaining witness, answered in negative, held not error.
    2. Criminal law <⅞=>954(1) — Statement that defendant inquired diligently into all facts held insufficient showing of diligence to warrant new trial on ground of newly discovered evidence.
    Statement in motion' for new trial, on ground of newly discovered evidence, that defendant “inquired diligently into all facts known to him,” held insufficient showing of diligence.
    3. Affidavits Affidavits sworn to before defendant’s attorney are not entitled to consideration.
    Affidavits in support of motion for new trial sworn to before defendant’s attorney are not entitled to consideration.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Alfred Gibbs was convicted of assault with intent to murder, and he appeals.
    Affirmed.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for assault with intent to murder R. W. Nix, punishment being two years in the penitentiary.

The testimony of Nix is to the effect that, on tile night the assault was committed, he was some three or four miles from Houston sitting in his car by the roadside with a young lady by the name of Bliss Gordon; that without any warning whatever appellant attacked him with a knife while he was sitting in the car, and cut him in a number of places; that the door of his .car was open, and in the scuffle he got out and knocked appellant loose after which he ran away Nix immediately went to a sanitarium where his wounds were dressed. He then secured an officer and returned to the spot where the assault occurred. In an examination of his car there was found upon the seat the broken blade of a knife, which was later found to fit exactly the handle of one found in appellant’s possession. Appellant’s version of the matter is that he had gone to see his wife; that she was away from home; that on the way back to the city he heard her talking. He asserts that she and not Miss Gordon was the female in the car with Nix; that, when he approached the car and asked Nix what he was doing there with his wife, Nix got out of the car and began an attack on him, and that in cutting Nix appellant was acting in self-defense. Nix is a white man and appellant a negro. The evidence develops that appellant’s wife is almost white.

The charge seems to .have presented every issue arising from the defensive evidence, and must have been satisfactory to appellant, as no objections were made thereto.

During the cross-examination óf appellant, the district attorney asked him if he had not undertaken to cut Nix’s throat in order that he might have an opportunity to rape the woman who was with him, and if this purpose was not in his mind at the time the assault was made by him upon Nix. These questions were answered in the negative, but over objection. We perceive no error in the ruling of the court in this respect. If the assault was committed as testified to by Nix, it would appear to have been an unprovoked attack by appellant. The motive which prompted the attack was a pertinent inquiry by the state.

Among other grounds set up by appellant in his motion for new trial was that of newly discovered evidence from his brother, one Manual Gibbs. The affidavit of the brother is attached to the motion. The point is made by the state that it is sworn to before appellant’s attorney, and therefore is' not entitled to consideration. This ground of the motion was controverted by the state challenging the diligence in discovering such evidence, if it in fact existed. The only diligence set up in the motion is that appellant “inquired diligently into all the facts known to him.” This is an entirely insufficient statement upon the point of diligence to excuse a party from the nondiscovery of evidence. It is purely a conclusion, and states nothing-that was done. If the matters stated by the brother of appellant in his affidavit are true, the slightest diligence by appellant would have discovered them..

It has been held many times that affidavits cannot be considered when taken by appellant’s attorney. Kellum v. State, 91 Tex. Cr. R. 664, 240 S. W. 1109; Siebe v. State, 92 Tex. Cr. R. 605, 244 S. W. 1013, and authorities cited therein.

Finding no error in the record, the judgment is affirmed. 
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