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 can not 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 they emphasize the importance of the testimony of said Beene and Railey. *Page 284
As the case must be reversed there is another matter we desire to call to the attention of the lower court. In the 12th 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 (art. 916, Code Crim. Proc.) 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 case 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 affirmance is hereby set aside and the judgment is now reversed and the cause remanded.
Reversed and remanded.