The appeal is from a sentence of two years in the penitentiary on a charge of assault to murder.
The victim of the alleged assault was appellant's wife. They had been estranged for some time but at the time of the alleged offense had been together on what appears to have been a drinking jaunt which ended at the home of appellant's mother. When they arrived at the house, the wife went inside but appellant remained at or near his automobile. From the conflicting evidence as to what took place, it appears that the mother of the wife came to the scene of the difficulty in the yard with a single barrel shot gun in her hand. Following a struggle with the gun, the mother was dead from a gunshot wound. According to the State's theory, this was done deliberately by appellant, who next turned to his wife, cursed her, and declared his intention to kill her and struck her a heavy blow on the head with the barrel of the gun. A physician was called, who testified that he examined appellant's wife and found a deep laceration at the base of her brain. The evidence sustained the conviction.
Appellant seeks a reversal of this case because of two bills of exception, one of which complains of the failure of the court to grant him a new trial because of newly discovered evidence. Evidence was offered as to the condition of the gun, in which it was stated that, among other things, the barrel was bent. This was given to corroborate the testimony of Mrs. McFarland that her husband struck her with it. After the trial, a brother of appellant executed an affidavit which was attached to the motion for new trial in which he told of a visit to the home of appellant's mother-in-law at a previous date when he saw the gun and knew that the barrel was bent long prior to the date of the alleged assault. It is urged this evidence is important but the importance of it need not be discussed, for we find it also contradicted in the evidence given by appellant who testified that the gun did not have a bent barrel before the altercation, and that he did not know how it came to be bent. If the evidence thus conflicts with that important, positive statement by appellant, he could hardly hope to attain a different result in the trial of a case by having it made available.
Bill of Exception No. 2 complains of the action of the court in placing him to trial on the charge of assault to murder, which was numbered 6727, instead of first being tried on a charge for the murder of his wife's mother, which was Cause No. 6728. There is nothing in the record to show that the murder case was *Page 472 first set for trial or that the court did not call the cases in their regular order. Further consideration of the question is precluded by the fact that appellant filed no motion for continuance of the case for which he was put on trial and does not, in fact, set out any grounds for his contention that a different result might have been attained had he been first tried on a charge of murder and obtained a verdict of acquittal. As the record is before us, his Bill of Exception No. 2 presents no question for our consideration with that degree of certainty which requires further discussion.
Finding no error, the judgment of the trial court is affirmed.
ON MOTION FOR REHEARING.