
    ALEXANDER v. STATE.
    (No. 5056.)
    (Court of Criminal Appeals of Texas.
    Nov. 6, 1918.)
    1. Homicide <&wkey;250 — Manslaughter — Sufficiency of Evidence.
    Evidence held sufficient to support verdict of manslaughter by defendant, who killed deceased in a quarrel that arose during a game of craps.
    2. Criminal Law <&wkey;1124(4) — Appeal — Evidence on Motion for New Trial.
    Code Cr. Proc. 1911, art. 841, permits state to take issue with defendant on truth of grounds of motion for new trial, and when state does so, court hearing evidence. and deciding against defendant, decision is conclusive on Court of Criminal Appeals, unless evidence on which trial judge acted is legally brought up for review.
    3. Criminal Law &wkey;>925 — New Trial — Misconduct of Jury-Evidence.
    In prosecution for manslaughter, facts as to misconduct of jury held insufficient to justify disturbance of trial judge’s finding that claim of misconduct did not call for new trial.
    4. Criminal Law &wkey;^942(2) — New Trial — Newly Discovered Evidence — Impeaching Statements.
    Alleged impeaching statements of witnesses out of court, conflicting with their testimony on trial, are generally treated as insufficient to require new trial on ground of newly discovered evidence.
    Appeal from District Court, Rusk County; Daniel Walker, Judge.
    Austin Alexander was convicted of manslaughter, and he appeals.
    Affirmed.
    Futch & Tipps, of Henderson, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant was indicted for the murder of Chester Matthews, convicted of manslaughter, and punishment assessed at three years’ confinement in the state penitentiary.

The fact that appellant shot and lulled deceased is conceded, shown by his own testimony. The evidence is conflicting as to the incidents of the homicide. Appellant and deceased were both negroes, and the evidence is conclusive that the difficulty arose over a dollar which appellant claims belonged to him, and which the deceased threw on the ground, telling appellant to take it, and that when appellant stooped to pick it up he was attacked by deceased with a knife, and was thrown down upon the ground, and that deceased’s brother joined in the attack, and that the' shots were fired in self-defense. . Appellant received several wounds, which he claimed were received in the fight, but which, from the state’s standpoint, were inflicted by the brother of deceased after the shooting.

The state’s theory and testimony tended to show that deceased and appellant were engaged in playing “craps” for money, and that a quarrel arose; that appellant in the quarrel put his hand in his bosom as though to draw a weapon; that deceased caught hold of him, and while standing appellant fired one shot, which struck deceased, and in the struggle which followed fired three others, which took effect.

The defendant’s theory of self-defense was fairly submitted to th& jury in the court’s general charge and in special charges requested by appellant, and we regard the evidence as entirely sufficient to support the verdict of manslaughter.

Appellant sought a new trial upon the ground that the evidence did not justify the verdict, misconduct of the jury, and newly discovered evidence. The misconduct consisted in the alleged fact that the juror Baxter was influenced to agree to the verdict of guilty against bis judgment by two facts: First, that appellant owed a relative of the juror a debt, and one of the jurors goaded him into the agreement, advancing the idea that otherwise he would be subjecting himself to the criticism of having been influenced by a desire to save his relative from loss of the debt; second, that in the argument which took place in the jury room one of the jurors stated that appellant’s attorneys had represented another negro in a different case, who had been sentenced to four years’ confinement in the penitentiary, when the crime justified a much heavier sentence; and, further, in the alleged fact that the juror Harrison was sick, and was influenced to render a verdict of guilty against his judgment by his desire to escape the discomforts of the jury room while he was sick. The newly discovered evidence consisted in the allegation that several of the witnesses who had testified to damaging facts had, in conversations out of the court, made statements and admissions conflicting with their testimony given upon the trial. There were affidavits attached to the motion supporting the ground stated.

From the order of the court overruling the motion for new trial it affirmatively appears that the facts alleged in the motion were controverted by the introduction of evidence ; that six of the jurors who tried the case, among them the juror Baxter, testified. We find copied in the record several hills of exceptions seeking to bring before this court the testimony thus adduced. The. term of court at which the conviction took place expired on the 9th day of February, and the bills of exceptions mentioned were filed the 30th of April following. The court entered an order extending the time of filing bills after adjournment. This court held, in the case of Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116, that facts adduced on hearing of motion for new trial could be considered only in the event they were verified and filed during the term of court at which the conviction took place, and that the provisions of the statute permitting statements of fáct and bills of exceptions to be filed after the expiration of a term had no application to those relating to the hearing of a motion for new trial. This construction has been adhered to without deviation. Probest v. State, 60 Tex. Cr. R. 609, 133 S. W. 263; Garcia v. State, 196 S. W. 182; Sanford v. State, 79 Tex. Cr. R. 346, 185 S. W. 27.

Article 841, Code Crim. Proc., permits the state to take issue with the accused upon the truth of causes set up in a motion for new trial, and when this is done, the court hearing evidence and deciding against the accused upon the truth of the allegations in his motion, his decision is conclusive on this court, unless the evidence upon which the trial judge acted in overruling the motion is in a legal manner brought to this court for review.

If the evidence heard by the judge who tried the case, as set out in the bills filed too late, could be considered, we think it would not justify a disturbance of his finding. The alleged impeaching statements of witnesses are generally treated in the decisions of this court as insufficient to require a reversal on the ground of newly discovered evidence. See Branch’s Ann. P. G. § 202, and cases collated.

Some of the alleged influences which are referred to in the motion as affecting the juror Baxter are of a character not justifying impeachment of the verdict. See Turner v. State, 61 Tex. Cr. R. 103, 133 S. W. 1052.

The judgment is affirmed. 
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