
    PATTERSON v. STATE.
    (No. 5447.)
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1919.)
    1. Criminal law <&wkey;720(l) — Comments on EVIDENCE IN ARGUMENT OE PROSECUTING ATTORNEY.
    In a prosecution for unlawfully carrying a pistol, where state’s witness testified without objection that appellant was in possession of a pistol and struck witness on the head with it, and defendant testified that he had no pistol, but struck witness with a stick, the prosecuting attorney was warranted in making comment upon such evidence in his argument.
    2. Criminal law <&wkey;958(4, 6) — Affidavits OE WITNESSES NECESSARY ON MOTION FOR NEW TRIAL.
    Court did not abuse its discretion in denying a motion 1 for a new trial on the ground of newly discovered evidence, where the motion was not accompanied by any affidavit of the new witnesses and a failure to produce them at the trial was not sufficiently accounted for.
    3. Criminal law &wkey;>942(l) — New trial foe NEWLY DISCOVERED IMPEACHING EVIDENCE PROPERLY DENIED.
    Court did not err in denying motion of new trial on the ground of newly discovered evidence, where the absent testimony was purely of an impeaching nature.
    4. Criminal law &wkey;>1091(ll) — Bill of exceptions TO ADMISSION OF EVIDENCE SHOULD INCLUDE THE EVIDENCE.
    A bill of exceptions, stating that a witness who was under the rule was permitted to testify after violating the rule, was incomplete, where the nature of the evidence given by the witness was not disclosed by the bill.
    5. Criminal law <&wkey;1153 (5) — Examination OF WITNESSES VIOLATING THE RULE.
    Where it is not shown that court abused its discretion in permitting a witness who was under the rule to testify after violating the rule, and the witness before giving his testimony was interrogated and declared that he had heard' none of the testimony, and accused after such interrogation made no further objection to the witness, there was no reversible error.
    Appeal from Red River County Court; R. J. Williams, Judge.
    Dewey Patterson was convicted of unlawfully carrying a pistol, and be appeals.
    Affirmed.
    E. A. Berry, Asst. Atty. Gen., for tbe State.
   MORROW, J.

Tbe appeal is from a conviction of unlawfully carrying a pistol. Tbe evidence is conflicting, state’s witness Tickers testifying specifically that tbe appellant was in possession of tbe pistol, and that he took it out of bis trousers and struck tbe witness on tbe bead witb.it; while tbe appellant testified that be bad no pistol, but struck the witness with a stick. Tbe statement of facts affirmatively shows that the witness Vickers exhibited to tbe jury a wound made upon bis forehead by tbe blow be received. This evidence was not objected to, and its presence in tbe record warranted tbe prosecuting attorney in making comment upon it in bis argument.

The contention in tbe assignment and motion for a new trial, claiming discovery of new evidence, cannot be sustained. Tbe alleged new evidence was to prove that one of tbe state’s witnesses wbo testified to tbe offense was not present at tbe time of tbe occurrence. Tbe motion is not accompanied by any affidavit of tbe new witnesses, nor is failure to produce them at tbe trial sufficiently accounted for. See Branch’s Annotated Penal Code, § 192, and section 195. See West v. State, 2 Tex. App. 209, and other cases referred to in tbe sections mentioned. Por these reasons no abusé of tbe court’s discretion in passing upon tbe motion for a new trial is shown, and tbe assignment is not well taken for tbe additional reason that tbe absent testimony was purely for tbe purpose of impeachment. See Gibbs v. State, 1 Tex. App. 12; and other cases cited, Branch’s Annotated Penal Code, § 202.

A bill of exceptions complains that one of tbe witnesses wbo was under tbe rule was permitted to testify after violating the rule. Tbe qualifications of the bill show that tbe witness before giving bis testimony was interrogated, and declared that be bad beard none of tbe testimony, and that after making this declaration tbe appellant made no further objection to tbe witness giving testimony.- Tbe bill fails to disclose tbe nature of the evidence given by tbe witness, and in that particular is incomplete. Aside from this, however, tbe record fails to show any breach by tbe court of the sound discretion vested in him with reference to matters of this kind. See Branch’s Annotated Penal Code, § 344, and cases listed.

We find nothing in tbe record justifying reversal of tbe judgment, and it is, accordingly, affirmed. / ■ 
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