Offense, murder; penalty, thirty-five years in the penitentiary.
Appellant was charged with the murder of Pat Murphy. About two days after the disappearance of deceased his body was found in the water of the Pecos River by a searching party and at the time it was weighted down with two rocks and was lying at the bottom of a hole of water described as about waist deep. His head showed to have been hit by some blunt instrument. Without giving in detail the evidence, suffice it to say that cogent circumstances were introduced showing that deceased came to his death at the hands of appellant and his brother. The body of Murphy was bare of clothes when found and some of the State's witnesses testified to finding his clothes under a bush between the river and appellant's place of business, also to finding deceased's belt at a mud hole where the car of appellant was stuck the next morning after it is claimed deceased was murdered. The State's witnesses also testified to finding a sap or piece of loaded hose in the gutter at the back of appellant's place of business with which it was claimed deceased was struck. *Page 103
The contention is presented in a motion for new trial that appellant since the trial has discovered evidence disproving the State's theory that appellant was in any way connected with the last above mentioned articles. It is shown in affidavits attached to such motion that certain witnesses made oath that they were over the ground where these various articles were found almost immediately after the discovery of deceased's body and saw no such at that time. It is claimed this testimony was very material to show that such articles had been "planted" by someone who was interested in seeing appellant convicted. There is lacking in appellant's motion for new trial any averments which show that failure to procure this testimony on the trial was not due to a lack of reasonable diligence on his part. The names of some of the affiants appear to be the same as those of witnesses who testified in the trial and the record suggests very strongly that they are one and the same persons. These witnesses were shown to have been in such juxtaposition to the transaction as to make it apparent that they might have knowledge of material facts and just why appellant's counsel failed to talk to these witnesses before the trial or during the trial is not shown. It must always be shown in an issue of this kind that the newly discovered evidence was such as reasonable diligence could not have secured at the former trial. West v. State, 2 Tex.Crim. App. 209; Terry v. State, 3 Tex.Crim. App. 236; Fowler v. State, 148 S.W. 576; Branch's P. C., Secs. 192, 198, where the authorities are collated upon this subject.
Appellant made application to continue this cause for the alleged absence of several witnesses. No useful purpose can be served by discussing each witness and a discussion of two of these will suffice to illustrate the point involved. Among the absent witnesses was "a woman called 'Blanche' and a man called 'Happy.' " The facts which they expected to prove by these two witnesses are set out as follows:
" 'Blanche' struck Murphy, whose body is alleged to have been found in the river, on the night of said alleged murder when the said Murphy accused 'Blanche' of having stolen money from this defendant and his brothers; that Murphy and 'Blanche' at that time had a quarrel; that the lick which 'Blanche' struck Murphy was in the face and made Murphy's nose bleed and caused his upper lip to swell; defendant expects to prove by 'Blanche' and 'Happy' the make of car that Paul and Dave Mitchell and Pat Murphy came to their tent in the night of the alleged murder; defendant expects *Page 104 to prove further by 'Blanche' and 'Happy' that on said night after Dave and Paul Mitchell and Pat Murphy left the tent in the car together, that Murphy later returned to the tent alone; defendant expects to prove by these two witnesses the time of such visit."
The materiality of this testimony or its bearing upon the issues is not shown further than what appears in the above quotation. The accused seeking a continuance should show himself entitled thereto by definite and certain averments. Lowe v. State, 11 Tex.Crim. App. 259; Walker v. State, 13 Tex.Crim. App. 648; Branch's P. C., Sec. 320. The burden is upon him to show definitely that he is entitled to a continuance and the Court will not look beyond the bill of exception presenting the matter to find facts which should have been set out in such bill. Substantially the same facts were testified to by witnesses during the trial, and the State did not appear to have seriously contested their truth. Under these circumstances, the Court did not abuse the discretion given it by law in a matter of this kind. Fisher v. State, 4 Tex.Crim. App. 181; Branch's P. C., Sec. 322. From the averments of the motion for a continuance, we regard these two as the most important of the number named and the others will therefore not be discussed.
No brief has been filed and these appear to be the only errors alleged which could be considered worthy of discussion.
Believing the evidence sufficient, the judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.