As stated in the original opinion, the sole question in this case is whether or not the court erred in refusing to grant the appellant a new trial on what he claimed was newly discovered evidence.
What the record showed on this subject was fully and accurately stated in the original opinion. It is unnecessary to here again repeat all that.
The statute (art. 841, C.C.P.) provides: "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." This statute, without any doubt, expressly, as it stated, authorized the State to take issue with defendant upon the truth of his claimed newly discovered testimony. The State did this in literal compliance with the statute. The State's answer to the appellant's claim of newly discovered testimony contesting this was as follows: "Now comes the State by her district attorney and takes issue with the defendant upon the truth of the causes set forth in his motion for a new trial in the above entitled and numbered cause, and says the causes therein alleged are not true, and this he is ready to verify. A.L. Robbins, District Attorney.
"The State hereto attaches exhibits "A," "B" and "C," affidavits of Effie Carter and Ed Brent, which is made a part hereof. A.L. Robbins, Dist. Attorney, J.M. Baldwin, Attorney for State." The contents of these affidavits is accurately given in the original opinion.
The appellant made this motion: "Now comes the defendant in the above cause and files this contest and moves the court to strike out the private prosecutor's contest of defendant's motion for new trial, and the alleged affidavits of Effie Carter." Then follows certain alleged reasons for striking out the State's contest and the affidavits attached thereto as said exhibits. *Page 603
The court upon hearing and considering this motion made this order: "This day came on to be heard the defendant's motion to strike out and not consider the contest of State and affidavits attached thereto filed in this cause in contest to defendant's amended motion for new trial, and the court after hearing said motion is of the opinion that same should be overruled and the said motion is hereby overruled."
There can be no question but that the State had the right, and it was its duty to have, as it did, contested appellant's motion for a new trial and the causes claimed therefor; and the court could not have legally done otherwise than it did, — overrule his motion to strike out that contest. Then when the court heard the motion for new trial and the State's contest, if the State had then offered in evidence the affidavit of Effie Carter, sworn to before the district attorney as a notary public, he should have objected thereto and shown that he did by proper bill of exceptions. He did not do this. The record does not disclose that he then objected to the introduction of that affidavit in evidence if it was offered, nor to the court considering it; but even if he had, as shown in the original opinion, he could not have been injured thereby because Effie Carter, in her affidavit which appellant attached to his motion for a new trial, expressly shows that wherein she then stated that her husband, Clarence, shot first, "that she made a contrary statement the morning after the killing." This could have referred solely to the affidavit that she had made before the district attorney that appellant shot deceased first.
But in addition to all of this, the record clearly and distinctly shows that neither the claimed testimony of Effie nor of Mr. Brent was, or could have been, newly discovered. The record distinctly shows that appellant positively knew that his daughter Effie was present at the time he killed deceased and when Clarence Carter shot him. It shows that the State had not subpoenaed Effie as its witness and that when he found that out he, himself, had her subpoenaed and in attendance on the court on the trial of the case. It also positively shows that Effie had told her mother, appellant's wife, prior to that time that Clarence Carter shot first. Appellant's attorneys, by their affidavits, show that they knew this. Appellant himself is bound to have known it. The record also clearly and distinctly shows that the location and extent of the wound on the deceased, inflicted by appellant and which killed deceased, could not have been newly discovered testimony. There can be no doubt but that many witnesses could have been obtained by the slightest diligence to show the location and extent of this wound. So far as the testimony of Deputy Sheriff Brent on the subject is concerned, the record positively shows that the appellant had Brent subpoenaed as his witness; that that he attended the trial as such; was sworn as a witness for him at the time the trial began, and that the appellant knew all of this. He did not call him as a witness, and even if he was temporarily absent out of the courtroom when the trial was concluded he says that he made no motion for a continuance or postponement to get him *Page 604 and made no attempt whatever to then get him or introduce him as a witness. We here repeat what we quoted from Judge White in the original opinion: "Where the testimony is of such a character as that it must have been known to the counsel for the defendant before the trial, it is in no sense newly discovered evidence. Burton v. State, 33 Tex.Crim. Rep.. Where the witness was interviewed by defendant's counsel upon one phase of the case only and was not put upon the stand, his testimony upon another phase is not newly discovered. Williams v. State, 5 S.W. Rep., 572. Where it appeared that the proposed witness had been subpoenaed in the case but was not put upon the stand to testify, the testimony was not newly discovered. Powell v. State,36 Tex. Crim. 377; Halliburton v. State, 34 Tex.Crim. Rep.."
Mr. Branch, in his Ann. P.C., page 127, correctly states the law thus: "Where it appears that defendant or his counsel knew of the alleged new testimony at or before the trial, or that defendant knew that the proposed new witness was present when the transaction occurred, or where the alleged new testimony is of such a character as that defendant must necessarily have known of its existence prior to the trial, and the trial court in the exercise of its sound discretion has refused a new trial, the judgment will not be reversed to permit him to take advantage of his own negligence and obtain a new trial to get testimony which he should and could have had at the trial." He cites in support of this text some forty-two cases, all of which are in point. See also Waggoner v. State, 190 S.W. Rep., 495.
There can be no question but that under the law, and what is plainly disclosed by this record, the court's action in refusing a new trial was correct.
The motion is overruled.
Overruled.