
    LOVE v. STATE.
    (No. 9098.)
    (Court of Criminal Appeals of Texas.
    May 20, 1925.)
    Criminal law &wkey;942(I) — Judgment reversed where newly discovered evidence showed conviction resting on testimony of unpardoned convict.
    Where newly discovered evidence developed that conviction of assault with intent to murder rested on. testimony of unpardoned convict, who, by statute, was prohibited from giving evidence and penalty was more than minimum, judgment will be reversed.
    Appeal from District Court, San Augustine County; V. H. Stark, Judge.
    Hubert Love was convicted of assault with intent to murder, and he appeals.
    Reversed and remanded.
    W. T. Davis, of San Augustine, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The offense is assault to murder; punishment fixed at confinement in the penitentiary for a period of six years. The state relied almost entirely upon the testimony of the injured party, Abe Roberts, for the conviction of the appellant.

The controverted question is that of malice .and intent. In support of the theory that the injury was accidentally inflicted, evidence of the declarations of Roberts, which he denied making, was introduced by the defense. It was developed upon the motion for new trial, by way of newly discovered evidence, that Roberts was an un-pardoned convict. The diligence to discover this is not as strong as might be desired but the appellant tried his own case without counsel. His conviction rests upon the testimony of a witness who, by statute, was prohibited from giving evidence. The penalty is more than the minimum. An affirmance of the judgment of conviction by this court under the circumstances would, in our opinion, be manifesting an injustice to the accused. Barber v. State, 87 Tex. Cr. R. 585, 223 S. W. 457.

The state’s attorney before this court concedes that the conviction should not stand. We are of the same opinion.

(the judgment is reversed, and the cause remanded. 
      (®=^Por other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
     