Appellant was convicted in the District Court of Galveston County of manslaughter, and her punishment fixed at four years in the penitentiary.
The parties to this killing were both negro women between whom there appears from the record, to have been trouble prior to the fatal difficulty. According to the State's testimony, on the night charged appellant came to the immediate neighborhood of where deceased made her home, and walked up and down for quite a while awaiting the coming of deceased, appellant having a pistol in her hand wrapped in a towel. When deceased appeared a wordy war ensued between the two followed by a shot from the pistol in appellant's hand. Deceased died in a very few minutes, being shot in the breast.
In appellant's brief three matters are assigned as error, it being insisted first, that it was erroneous to permit the State, over objection, to ask two witnesses for appellant, on cross-examination, if they had not made written statements shortly after the homicide, at variance with their testimony as given upon the trial. It is stated in the bill of exceptions presenting this matter that each of these witnesses had testified on the trial that two days before the homicide they heard deceased make threats to kill appellant; that upon cross-examination they were asked if they had not made written statements on the day after the homicide, in which they denied having heard deceased make any threats to kill appellant. It also appears that the objections made by appellant to said questions were overruled and that said witnesses answered, and that thereafter the assistant county attorney was placed upon the stand as a witness for the State and testified, over objection, that said witnesses made a written statement the day after the homicide in which they denied having heard deceased threaten to take the life of appellant. The objections made were without merit. The fact that the statements made by the witnesses which were used for purposes of impeachment, were not made in the presence of the defendant, and that she was given no opportunity to cross-examine said witnesses at the time they made said statements, and that she was not being confronted by said witnesses at the time they made said statements used as impeachment, and that said statements were not made on any examining or habeas corpus trial but were made privately to the assistant county attorney, are non valid grounds of objection. It is a well known rule that witnesses may be impeached by proof of prior inconsistent *Page 387 or contradictory statements made by them at variance with those given upon the trial, and we know of no authority holding good the objections to proof of the making of such contradictory statements, such as those here presented. The bill of exceptions approved by the trial court is wholly at variance with the statement of the facts. Said bill states that the witnesses Menda White and Mattie Williams were asked certain questions and answered, and that the assistant county attorney took the witness stand and testified that Menda White and Mattie Williams did make certain written statements. It fails to appear from the statement of facts that Mattie Williams was asked any such question, or that the assistant county attorney attributed any such testimony or contradiction to the witness Mattie Williams. Great care should be exercised by trial judges in the examination of bills of exception to see that they reflect the proceedings as they occurred. The general rule adhered to by this court is that we accept the statements in bills of exception in preference to those appearing in the statement of facts upon the hypothesis that the attention of the trial court had been specifically directed to the facts contained in such bills of exception, and that they have the approval of the court below after critical examination.
Appellant also complains of the refusal of the trial court to instruct the jury upon aggravated assault. This error is not discussed in appellant's brief and no authorities are submitted, and indeed none are known to us upon which can be based the proposition that one who takes the life of another with a pistol by shooting, from the effect of which shot death results, there being no testimony indicating any other purpose on the part of the accused except to take life, may demand a charge on aggravated assault. We have examined the testimony in the instant case and find nothing in the record suggesting the propriety of a charge allowing the jury to reduce the offense of appellant, if any, to aggravated assault. Appellant claimed to have shot in self-defense, her theory of the difficulty being that deceased had previously threatened to take her life, and that on the occasion in question deceased called her from her house into the street, and came rushing toward her with a knife in her hand, cursing her as she came, and that when she got near to the appellant, that a shot was fired by the latter in self-defense. The charge of the court submitted the law of self-defense, of manslaughter and of murder.
Appellant made a motion for a new trial based in part upon newly discovered evidence, same consisting of the affidavit of Sadie Williams that she was present at the time of the shooting and heard deceased save a short time before the homicide that she was going to kill appellant. It is made to appear from the record that Sadie Williams was in jail with appellant after she was convicted herein, *Page 388 and also that said Sadie Williams was in jail at the time the supporting affidavit referred to, was made. The county attorney filed a controversy of the grounds of appellant's motion for new trial, and with reference to the testimony of Sadie Williams contained in said affidavit, averred that Sadie Williams was under indictment for perjury and that she had been indicted for other offenses, and that her testimony was unworthy of belief. These controverting assertions were supported by proof. In passing upon any motion for new trial calling in question the propriety of granting same for the purpose of obtaining testimony which was not had upon the original trial, the trial courts are called upon to consider the proposition as to whether or not the presence of a witness and the giving of testimony not had at the original trial, would likely produce a different result from that attained; this court had declined to reverse cases upon the supposed error of the trial court in refusing new trials desired in order to obtain such testimony, unless we believe the lower court has abused his discretion in the matter of refusing such new trial. We do not believe any such abuse appears in the instant case. A pending indictment against said witness for perjury alleged to have been committed upon a criminal trial, was before the court, as were other facts affecting the credibility of said witness. We do not deem the refusal of the new trial in order to obtain the testimony of Sadie Williams, to reflect any abuse of the discretion of the court below. The statement of facts heard by the court upon the motion for new trial, was filed after the term of court and can not be considered.
Finding no error in the record, the judgment of the trial court is affirmed.
Affirmed.
ON REHEARING. June 27, 1923.