Appellant contends that it was the duty of the lower court, under the circumstances of this case, to have charged the jury that if appellant did not intend to kill deceased he would not be guilty of any grade of homicide, even though the weapon used was a deadly weapon. We have been unable to reach the conclusion that the proposition contains a sound principle of law, or that the cases cited by appellant sustain it. The language in all opinions must be construed with reference to the particular subject under investigation. In Connell's case, 46 Tex.Crim. Rep., the weapon used was a dirk-knife. The charge on manslaughter there given and approved was substantially the same as given in the present case. In Fitch v. State, 37 Tex.Crim. Rep., the weapon used *Page 528 was a stick of wood; in Danforth's case, 44 Tex. Crim. 105, the weapon used was an iron pipe; in House v. State,75 Tex. Crim. 338, 171 S.W. Rep., 206, the weapon was an axe-handle. In the three cases last mentioned the deadly character or otherwise of the weapon was a disputed point. In the present case the weapon was a Winchester rifle. Under the facts we think no reversal was called for because the court omitted to charge on appellant's intent to kill. See the recent case of Twyman v. State, (No. 7105, opinion January 30, 1924.)
The second ground of the motion for new trial is based upon an averment that the jury separated. The affidavit of J.S. Baldwin asserted the truth of this averment. The fourth ground of the motion is based on the averment that J.J. Pennington, one of the jurors, conversed with his father without the knowledge or presence of the court. The affidavit of A.J. Smith asserted the truth of this allegation. The affidavits in each instance were attached to the motion. Upon hearing the motion, oral evidence was introduced upon the issue of whether there was a separation of the jury and the court determined this issue of fact in favor of the State, Neither appellant nor the State offered evidence by affidavit or orally upon the issue raised by the fourth ground of the motion. Appellant assumes that under the circumstances stated Smith's affidavit was properly before the court, was bound to be considered, and that it established the truth of the averments as to Juror Pennington having conversed with his father, and therefore reaches the conclusion that the burden was then upon the State to rebut the presumption of injury, and that not having done so appellant was entitled to a new trial under the rule announced in McDougal v. State, 81 Tex.Crim. Rep., 194 S.W., Rep., 944; Toussaint v. State, 92 Tex.Crim. Rep., 244 S.W. Rep., 514, and authorities therein cited. We do not doubt the correctness of appellant's conclusion if his assumption as to the affidavit is also correct, but as to the latter we are not in accord. Some confusion apparently existing as to just what the views of this court may be upon this matter is our excuse for writing at greater length than we would ordinarily deem proper. Where the motion for new trial asserts the existence of facts dehors the record which if true would demand a new trial the burden is upon accused to establish the truth of the averments and not upon the State to prove they are untrue. "The State may take issue with the defendant upon the truth of the causes set forth in the motion for a new trial; and in such case, the judge shall hear evidence, by affidavit or otherwise, and determine the issue." (Art. 841, C.C.P.) It is not necessary for the State to join this issue with the defendant by a written pleading. The statute does not so require. In this respect it differs from the State's contest of defendant's application for continuance. (See Art. *Page 529 612, C.C.P.) Whenever it appears from the record that evidence was heard upon the motion, then this court will assume that the motion was contested. The trial judge must of necessity determine the truth of the averments in the motion; this he may do by affidavits or otherwise. (McConnell v. State, 82 Texas Crim Rep., 634, 200 S.W. Rep., 842.) He is not bound in such case by the affidavits attached to the motion, and when the record shows that oral evidence was heard, then this court will assume that the trial judge elected, as he had a right to do, to determine all issues of fact otherwise than by affidavits, and the only evidence to which this court can then look is that which may be incorporated in a proper bill of exceptions or in a statement of facts upon the issues then being tried. If the judge elected to do so he might try the issues by affidavits, and also by the oral testimony or by other pertinent evidence, but when this is done all the evidence, affidavits or otherwise, should be incorporated in the bill or statement of facts in order that this court might be advised of what the trial judge did consider to the end that we might intelligently review his action. It has been held that when the record before us did not show that oral testimony was heard nor that the State had otherwise controverted the truth of the averments in defendant's motion, that the correctness of the court's ruling thereon would be tested by the affidavits attached to the motion. Collins v. State, 95 Tex.Crim. Rep., 254 S.W. Rep., 805; Washington v. State, 86 Tex.Crim. Rep., 218 S.W. Rep., 1043. But this holding is not in conflict with the views expressed in our original opinion nor to those here expressed. Hickox v. State, 94 Tex.Crim. Rep., 253 S.W. Rep., 823, is in consonance with our present holding. The record before us on the original submission of that case was somewhat in the same condition as the present one, but upon rehearing a supplemental transcript showed affirmatively by the order of the judge upon the motion that the affidavits of both the defendant and the State were considered by him. Neither the bill of exceptions nor the order upon the motion in the present case show that the Smith affidavit was considered, and the action of the court in not sustaining the motion upon the ground to which the affidavit related cannot be held erroneous.
Appellant sought a new trial for alleged newly discovered evidence. The affidavits of witnesses were attached to the motion. Upon the hearing the witnesses were brought into court and their evidence taken, as was also the evidence relative to the purported discovery of said witnesses subsequent to the trial. We have examined the entire record relating to this matter, and have reached the conclusion that no abuse of the court's discretion in overruling the motion upon this ground is shown.
The motion for rehearing is overruled.
Overruled. *Page 530