
    HENSON v. STATE.
    (No. 2885.)
    (Court of Criminal Appeals of Texas.
    April 22, 1914.
    On Motion for Rehearing, June 3, 1914.)
    1. Criminal Raw (§ 721) — Telad—Defend-ant’s FAILURE TO TESTIFY — REFERENCE IN Argument.
    Defendant’s attorney having argued that there was no evidence that defendant intended to kill deceased, the district attorney in his address in reply stated that the jury could only judge of defendant’s intent from his acts, and then asked on whose testimony, defendant’s attorney based his statement, stating that certain witnesses specified did not so testify, and that defendant did not put certain other witnesses named on the stand to so testify, and then stated that there was no evidence that the gun that killed deceased was accidentally discharged, and that defendant did not intend to kill him. Held,, that such argument was not erroneous as a reference to defendant’s failure to testify in his own behalf.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.]
    2. Homicide (§ 8) — Statutes—Appeal.
    The statute creating the crime of murder, and providing for punishment thereof, was not repealed by Act April 3, 1913 (Acts 33d Leg. c. 116), amending Pen. Code 1911, art. 1140 et seq.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 13; Dec. Dig. § 8.]
    3. Homicide (§ 334) — Harmless Error — Conviction of Offense of Lower Grade.
    Where defendant was convicted of manslaughter only, and the lowest penalty assessed, any error relating to higher grades of homicide was not prejudicial, and was unavailable on appeal.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 705; Dec. Dig. § 334.]
    On Motion for Rehearing.
    4. Homicide (§ 319) — New Trial — Newly Discovered Evidence.
    In a prosecution for homicide, the state having denied that deceased had a pistol when he was killed, and having claimed that he then owned only a small automatic, newly discovered evidence that in December, 1912, just prior to the killing, M., in payment of a debt, gave deceased a 38 black Colt’s pistol, and that neither of the witnesses testifying to this had ever disclosed their knowledge to any one until after the trial, was sufficient to entitle defendant to a new trial; it sufficiently appearing that no ■ reasonable diligence could have discovered their testimony at the time of the trial.
    [Ed. Note. — For other cases, see Homicide, Dec. Dig. § 319.]
    5. Criminal.Law (§ 942) — New Trial — Newly Discovered Evidence — Impeachment.
    Newly discovered evidence, available for impeachment only, is not of itself ground for a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2316, 2331, 2332; Dec. Dig. § 942.]
    6. Criminal Law (§ 938) — New Trial — Newly Discovered Evidence.
    Additional evidence of a witness who was present at the trial, and whom defendant knew was with deceased shortly before the killing, could not be regarded as newly discovered, so as to form the basis of an application for a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2306-2315, 2317; Dec. Dig. § 938.]
    7. Homicide (§ 295) — Manslaughter—Acts Indicating Passion.
    A clause in an instruction submitting the offense of manslaughter, and stating as one of the several things which might be sufficient to show sudden passion the commission of any hostile act or acts toward defendant or his brother, or the crowd of which defendant and his brother were members, was improper, since hostile act or acts, if any, would apply only to the question of defendant’s claim of self-defense, and would not authorize a conviction of manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. § 295.]
    8. Criminal Law (§ 1139) — Appeai>-Recoed —Affidavits Filed after Appeal.
    Affidavits of grand jurors filed by the district attorney after the'case had been appealed could not be considered either by the trial court or the Court of Criminal Appeals, as provided by Code Cr. Proc. 1911, art. 916.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3000; Dec. Dig. § 1139.]
    Appeal from District "Court, Robertson County.
    Norman Henson was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    H. S. Morehead and J. L. Goodman, both of Franklin, and Woods & Harris, of Houston, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, P. J.

On January 17, 1913, the grand jury of Robertson county duly presented an indictment against appellant, alleging that on December 25, 1912, he, with implied malice, killed and murdered J. A. Prichard by shooting and hitting and striking him with a gun, and by hitting and striking him with some blunt instrument, a better name and description of which is to the grand jurors unknown, and by hitting and striking and cutting him with some unknown instrument. The term of court at which he was tried began June 18, 1913. At that time he and his attorneys both being present, in open court, his case was set for trial for June 30th following. On the morning of June 30tli his case was called for trial, and both parties announced ready. He was convicted of manslaughter, and the lowest punishment assessed.

We will discuss the questions briefed by appellant somewhat in the order presented by him in his brief.

By his motion for new trial, he complains of a short excerpt from the closing argument of the district attorney. He took no bill of exception to this at all. Neither did he ask any written charge from the court telling the jury to disregard it. He attached the affidavit of his attorneys and a considerable number of others to his motion for new trial showing that the district attorney used the language they claimed he used. The district attorney resisted by written answer appellant’s motion on this ground, and as a part thereof attached his affidavit disclosing particularly and fully what he did say and the circumstances under which he used any language complained of. The appellant’s affidavits do not dispute the district attorney’s affidavit of the facts and circumstances leading up to what they claimed is the objectionable matter. The language they complain of is this:

“They tell you that defendant did not intend to kill deceased. Who testified that he didn’t intend to kill him? Miss Bell Norris didn’t testify that he didn’t intend to kill him; neither did Priestly Thomas. Why didn’t they put some one on the stand who could testify that the gun that killed poor old man Prichard was accidentally discharged, and that Norman Henson did not intend to kill him?”

The district attorney’s affidavit shows this:

“That in my closing speech, among other statements, I used the following language, to wit: ‘Gentlemen of the jury, Mr. Morehead, one of the lawyers in this case, has argued to you that you cannot convict the defendant for a higher offense than aggravated assault, because the defendant did not intend to kill deceased, and that there was no evidence that he intended to kill him, and that there was nothing that would have kept him from shooting the deceased again if he had wanted to kill him. Now, you gentlemen of the jury know as well as I know that you can judge of a man’s intent only by his acts, by what he does. Upon whose testimony does Mr. Morehead base his statement that the defendant did not intend to kill old man Prich-ard? Miss Bell Norris, whom they put on the stand, did not testify that defendant did not intend to kill him, and neither did Priestly Thomas. They did not put J. D. Henson on the stand to testify what he knew about it, nor did they put Mrs. J. D. Henson on the stand. Why did they not put Elmer Norris, whom the evidence shows left the store with defendant and his brother with a gun, on the stand? There is no evidence that the gun which killed old man Prichard was accidentally discharged, and that Norman Henson did not intend to kill deceased. Wesley Padgitt testified that defendant struck deceased on the head with something after the gun had fired, and remarked when he did so, “X reckon you have got enough.” Does not that show the intent of defendant’s mind?’ The above remarks were made in answer to the argument made by Mr. Morehead that there was no evidence which showed that defendant intended to kill deceased.”

All tbis occurred in tbe presence and bearing of tbe trial judge. By bis overruling tbe motion for new trial on tbis ground, it must be presumed that be believed tbe affidavit of tbe district attorney, and that it was in accordance with bis own knowledge of wbat and bow it occurred. As tbe matter it presented it shows no reversible error.

Tbis court, through Judge Davidson, in Sample v. State, 52 Tex. Cr. R. 506, 108 S. W. 685, 124 Am. St. Rep. 1103, said:

“It is seriously urged that the remarks of the county attorney, to wit, ‘There has been no witness upon this stand to contradict the testimony of this girl, Kittie Green,’ was an allusion to appellant’s failure to testify in his own behalf. We do not believe that this is such an allusion to the failure of appellant to testify in his own behalf as is contemplated by the statute, if in fact it was such an allusion at all. As a matter of fact, there was no witness on the stand to directly contradict Kit-tie Green in regard to this matter. The defendant could have taken the stand, but did not. Scroggins was in a different part of the same room; but Kittie Green says that he could not have seen her at the time that appellant assaulted her, though he was visible to her. To give the statute such a construction as urged by appellant would be tantamount, practically, to almost preventing a discussion of the case with reference to testimony of the state’s witness, when only one witness was used; defendant being the only other witness who could testify to the same facts.”

There are many decisions of tbis court to tbe same effect. In the case of Dink v. State, 164 S. W. 987, decided February 18, 1914, we bad occasion to review tbis question and therein state tbe principles applicable thereto and cite some of tbe cases. See, also, Gatlin v. State, 163 S. W. 428, decided January 21, 1914. See, also, on a like question, Cooper v. State, 162 S. W. 366, and Coffman v. State, 165 S. W. 939, decided March 18th.

Appellant’s next ground is that tbe court should have granted him a new trial because of newly discovered testimony. Tbis point was likewise contested by tbe district attorney. Tbe substance of appellant’s motion is because of newly discovered evidence of Thomas Shafer, J. H. Winn, A. J. Kent, Dudley Beene, and George Railey; that if they bad been present they would have testified, respectively, as shown by their affidavits attached to and made a part of bis motion; that tbe testimony of each “is newly discovered, and that it was not known to defendant or either of bis attorneys that either of said witnesses would testify * * * until after bis trial and conviction, although be and bis attorneys have used all due diligence in tbe premises”; that said testimony is material to bis defense, because tbe state denied that deceased bad a pistol at tbe time be was killed; that he did not then own and bad no pistol, except a small automatic. Appellant swore that tbe ground of bis said motion was true and correct. Neither of bis attorneys made any affidavit whatever. He and no other testified or showed wbat diligence bad been used to procure tbe said testimony or tbe attendance of said witnesses, or either of them. Neither appellant nor bis attorney disclosed what efforts they had made to learn of the testimony of these witnesses, or either of them, nor how nor when they discovered, other than appellant’s statement in his motion for new trial above, that it was not known to him or either of his attorneys until after the trial and conviction. The testimony of the witnesses Winn and Kent could have been used and was admissible for no other purpose than to impeach the state’s witness Padgitt. The affidavit of Beene and Bailey was solely to the effect that some time in December, 1912, Bailey, in Marquez, in payment for a debt he then owed • deceased, let him have a 38 black Oolt’s pistol, and that neither of them told this to any one until after appellant’s trial. It is in no way shown that both of these witnesses were not present at the time of the killing, or where they then were or had been both before and after the killing. Shafer’s affidavit was to the effect that, on the night of the killing, shortly prior thereto, he saw deceased have a black pistol, a big pistol, in his hand at Mr. Buchanan’s; that he had seen bigger pistols and less pistols; that he never told any one this before appellant’s trial, not even the grand jury when he was before that body, because the grand jury did not ask him. Appellant’s motion for new trial was filed and acted upon by the court on July 14th, at which time, it seems, these affidavits were considered by the court. From appellant’s bill of exceptions and the court’s qualification of his action on motion for new trial, it appears that the court, at the suggestion of the district attorney, stated that when presented to him he would qualify appellant’s bill of exception as to the witness Shafer by stating that Shafer was present, sworn in, put under the rule by the state as a witness in the cause when the case went to trial, and that so far as he knows remained in attendance with the other witnesses, and that after the trial was concluded he proved up his attendance as such witness in order to get his fees; that when on the bench preparing to take action in another case one of appellant’s attorneys said to him, if he was going to qualify the bill as stated, he ought to be allowed to file affidavits showing that said witness refused to talk to the appellant or his counsel before or at the time of the trial, and that the court stated to the attorney at the time that he would allow him to file such affidavits afterwards; that during all this time the district attorney was present, talking, taking a part, and making suggestions, but the court, unfortunately, could not remember all that the district attorney then said; that on the morning after the hearing of said motion for new trial the district attorney insisted that, as appellant’s attorneys had the right to file affidavits, the court had also granted him such right, and that he be allowed to then file the affidavit of D. L. Dodson and S. J. Beall, two members of the grand jury returning said indictment, which the court permitted. That affidavit is to the effect that said Shafer was summoned and appeared to testify before the grind jury, and he swore that on the night of the killing, a short time before deceased was killed, deceased came to the house of Buchanan, where he (witness) was staying, and that he did not see a pistol on or about the person of deceased, and that, if deceased had a pistol, he did not know it. Appellant’s point and bill on this subject is that it was too late, after the action of the court in overruling the motion for new trial, the next day, in the absence of appellant, to permit the filing of the grand jurors’ affidavit, and in effect that it could not be considered for any purpose.

Newly discovered evidence is made one of the grounds which authorizes the lower court to grant a new trial. O. O. P. art. 837, subd. 6. This question has been before this court in a very large number of cases. What we said in Gray v. State, 144 S. W. 284, is applicable here. We quote it:

“It is well established by the decisions of this court that a motion for new trial on this ground. is closely scrutinized, and is largely confided to the discretion of the trial court; and the disposition there made of it will not be disturbed on appeal, unless it be apparent that the trial court abused its discretion to the prejudice of appellant. Burns v. State, 12 Tex. App. 270; Bell v. State, 1 Tex. App. 598; Templeton v. State, 5 Tex. App. 398; Shaw v. State, 27 Tex. 750; West v. State, 2 Tex. App. 209; Terry v. State, 3 Tex. App. 236.
“It is also well established that in a motion for new trial on this ground it is incumbent on the appellant to satisfy the court (1) that the evidence has come to his knowledge since the former trial; (2) that it was not owing to want of due diligence on his part that it was not discovered and did not come to his knowledge before the trial; (3) that it is competent and material evidence, and not merely cumulative, corroborative, or collateral; (4) that it will probably produce a different verdict if a new trial is granted ; (5) that it is not simply for the purpose of impeaching a former witness. If the application is defective in establishing any one of these essentials, a new trial should be refused. Fisher v. State, 30 Tex. App. 502, 18 S. W. 90; West v. State, supra; White v. State, 10 Tex. App. 167; Shaw v. State, supra; Duval v. State, 8 Tex. App. 370; Gross v. State, 4 Tex. App. 249; Hutchinson v. State, 6 Tex. App. 468.”

Tested by these well and long-established rules and authorities, it is our opinion that the record does not show that the trial judge has abused the discretion committed to him which would authorize this court to reverse this cause on said ground. Powell v. State, 36 Tex. Cr. R. 377, 37 S. W. 322; Halliburton v. State, 34 Tex. Cr. R. 410, 31 S. W. 297; Williams v. State, 45 S. W. 572.

Appellant in various ways contended that the murder statute was repealed by the act of April 3, 1913, p. 238, when article 1140 et seq. of the Penal Code was amended. This has been so many times decided against appellant that it is unnecessary to discuss it again or cite the cases. Besides this, appellant "was convicted of manslaughter, with the lowest penalty assessed. Hence error, if any, of that hind committed would not avail him on this appeal.

He requested some special charges. He also complained of some particular word in the court’s charge; also of some few words in some paragraphs thereof and sometimes of whole paragraphs. Most of these matters are not raised nor presented in such a way as. that this court can consider them under the long and uniform line of decisions to that effect. Yet we have carefully considered all of the objections to the court’s charge, refused special charges, and, in our opinion, none of them present any reversible error. There are such a large number of them we deem it unnecessary to even tahe them up and state or discuss them. The court’s charge; in our opinion, presented the case in favor of' appellant on every point which the evidence raised in his favor, and while the testimony was conflicting on some material points, there was nothing' in the court’s charge so complained of that.would authorize a reversal, nor in the refusal of the court to give his special charge. And wherever the court submitted any question for a finding in favor of the state, it required the jury to believe beyond a reasonable doubt every essential in favor of the state before they could find against the appellant. When the charge is considered, it specifically meets eyery question complained of by appellant.

While a very large number of grounds of tljg motion for new trial are made, none of them present any error or any question that needs discussion. The judgment will be affirmed.

DAVIDSON, J., absent at consultation.

On Motion for Rehearing.

Upon a reconsideration of this case we have concluded that we were in error in holding that the lower court committed no error in overruling appellant’s motion for new trial on the ground of newly discovered evidence. We believe the evidence of Beene and Railey was newly discovered evidence, that it was material, that it might affect the result of another trial favorably to appellant, and that his motion and affidavits are sufficient to show that no reasonable diligence could have discovered their testimony before the trial. The testimony of Winn and Kent, being for impeachment purposes only, would not of itself authorize a new trial, even though newly discovered. Neither would that of Shafer, because he was present at the trial, the appellant knew that he was with the deceased just shortly before the killing, and he cannot await the result of a trial and then claim that what he would testify would be newly discovered; but the testimony of the said three witnesses Shafer, Winn, and Kent, although not sufficient of and ■ within itself to authorize a new trial, yet emphasizes the importance of the testimony of said Beene and Railey.

As the case must be reversed, there is another matter we desire to call to the attention of the lower court. In the twelfth subdivision of his charge submitting to the jury the question of manslaughter for a finding, the court among other things in enumerating what might be sufficient to show sudden passion, etc., has this:

“Or committed any hostile act or acts towards Norman Henson or his brother, or to the crowd of which Norman Henson and his brother were members.”

This should be omitted from that charge. The hostile act or acts, if any, would go to the question of appellant’s claimed self-defense, and in no event 'would they authorize the jury to find the defendant guilty of manslaughter. We think it unnecessary to discuss this question, but merely call attention to it so that these words may be omitted from this charge on another trial.

In the original consideration of this case and the opinion first handed down affirming it, we did not consider, and did not intend to imply that we considered, the affidavits of the grand jurors filed by the district attorney, after the case had been appealed. The statute (article 916, O. O. P.) in effect, as well as the many decisions of this court, prohibit the consideration by this court or of the lower court of any such matters. We presume, of course, the judge of the lower court did not consider them because they were filed after the ease had been appealed and after he had acted on the motion for a new trial. The fact that these affidavits or any other extraneous matter is filed in the lower court after the case is appealed would not present any reversible error, whether filed with the permission of the court or without it.

We adhere in all other matters to the original opinion. All questions therein discussed and decided, other than what we now call attention to, were correctly decided.

For the errors of the court in refusing a new trial on the ground of newly discovered evidence, and in said charge, the original af-firmance is hereby set aside, and the judgment is now reversed, and the cause remanded.  