Appellant bases his motion for rehearing on the proposition that he was surprised at Zamudio's testimony on the trial to the effect that several shots were fired by appellant, one of which struck him a glancing blow on the instep of one foot; that since the trial he had discovered that the physician who waited on Zamudio at the hospital would testify to only one wound, that being in the shoulder. From this appellant argues that it would be persuasive that only one shot was fired by appellant.
From an analysis of the evidence we cannot attach the same importance to the question of whether Zamudio received a wound in the foot as seems to be given it by appellant. There were present at the beginning of the difficulty Zamudio, Rodriquez, Saladana, Perez, Cortez and appellant; all testified save Cortez, and his absence from the trial is not accounted for although he appears to have been appellant's friend and at whose invitation appellant was *Page 466 in company with the other parties. All the witnesses, save appellant, testified that he was the aggressor, and that he fired several shots. Perez and Zamudio both said that one of the shots struck Zamudio in the foot. An interview with these witnesses, which presumably could have been obtained by the slightest diligence, would have revealed the fact that appellant was claimed to be the aggressor and fired several shots, and this we deem the vital issue, and not whether one of the shots struck Zamudio in the foot, although the claim that it did would have been revealed by interviewing Perez or Zamudio. Appellant knew who was present at the difficulty and who the witnesses were, and all the matters claimed to have been newly discovered appear to us to have been easily ascertainable. We cannot agree that appellant has brought himself within the rule authorizing a new trial for newly discovered evidence.
The motion for rehearing is overruled.
Overruled.