
    Tom BARNES v. STATE.
    (No. 9370.)
    (Court of Criminal Appeals of Texas.
    June 24, 1925.)
    Appeal from District Court, Lamar County; Ben H. Denton, Judge.
    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 with intent to murder; punishment fixed at confinement in the penitentiary for a period of four years. The indictment, in regular form, ’ charges that an assault was made upon John North-am. The ease was tried before a jury, and' upon the verdict rendered the judgment and' sentence appear to have been regularly entered. The facts which were before the jury and the trial court are not brought here for review. A new trial w&s sought upon the ground of newly discovered evidence of certain persons. Some of these persons, according to the motion,, would testify that the day after the assault they visited the locality and observed the condition of the fence and fence posts. The relation of the fence or posts to the assault or the evidence adduced on the trial is not revealed by the motion for new trial, nor otherwise by the record. Nothing advising this.court of the relevancy or materiality of the proposed testimony is before this court. It .is therefore manifestly without knowledge of facts which would enable it to appraise the merits of the motion. One of the alleged new witnesses would have related a conversation with Henry Jones, in which Jones said he'would send Tom Barnes to the penitentiary if he had to swear a lie. Jones may have been a witness and may have given material testimony for the state. This may have Éeen a predicate for his impeachment by the purported statement. However, on these matters we are not advised by the record. The diligence to ascertain the purported knowledge of the witnesses mentioned antecedent to the trial is not set out. There are no bills of exception complaining of the rejection or admission of evidence. , The judgment is affirmed.  