Appellant was convicted in Criminal District Court No. 2 of Dallas County of the offense of murder, and his punishment fixed at ten years in the penitentiary.
There is but one contention made on behalf of the appellant on this appeal and that is that he should have been granted a new trial because of newly discovered evidence. In a general way the authorities sustain the proposition that to warrant a new trial on the ground that newly discovered testimony is presented, it is incumbent on the accused to satisfy the court that such testimony has come to his knowledge since the trial and that it was not known beforehand, and was not such as reasonable diligence could have secured at the trial; same must be competent, material to the issue and probably true, going to the merits and not merely cumulative, collateral or to impeach a witness; and it must also appear reasonably probable that it would change the result upon another trial. Burton v. State, 9 Texas Crim. App., 605; White v. State, 10 Texas Crim. App., 167; Fisher v. State, 30 Texas Crim. App., 509; Price v. State, 36 Tex.Crim. Rep.; O'Hara v. State, 57 Tex.Crim. Rep.; Haley v. State, 59 Tex. Crim. 338.
Appellant attaches to his sworn motion for new trial the affidavits of his sisters, his uncle and three other persons which present the matter relied upon as newly discovered testimony. There can be no serious contention that as to appellant, his mother or his sisters or uncle that the matter relied upon was newly discovered. Upon his *Page 514 trial appellant relied upon an alibi and introduced his mother, sisters and uncle by whom he tried to establish that he was at his mother's home some seven blocks from the scene of the homicide at the time same occurred. We observe from his testimony that he swore as a witness in his own behalf that the first he knew of the killing was when the officers came out to his mother's home and arrested him, at which time he was sitting in his back yard with his mother and sisters. These same witnesses now testify by their affidavits that before the officers got to the house and after the shooting which they claim to have heard, one Herman Moore came through the yard and told appellant that he had got him, and that he been there before that same afternoon telling him that he intended to kill deceased. The fact which they now seem to rely upon as excusing the disclosure of this testimony at the trial is that they were afraid Moore would kill appellant if he then told this, but this can not give to the testimony any standing as being newly discovered. Two of the affidavits attached to appellant's motion are of persons who undertook to swear that they heard Herman Moore admit after the killing, that he was the party who did the killing. Such statements would not be admitted in evidence upon another trial of the accused. Greenwood v. State, 84 Tex.Crim. Rep.. Such declarations on the part of said affiants would be but hearsay and incompetent. The newly discovered testimony attributed to witnesses Oldridge and Jones would be but cumulative of other testimony heard on the trial of this case. That of Oldridge would easily seem to be that of a witness who could have been procured by the exercise of reasonable diligence, as he says in his affidavit that he was at the house where appellant was on the afternoon before the killing and saw Herman Moore there. The testimony of Jones, as reflected by his affidavit, would be that he was about seventy-five feet south of the point of the shooting and that it was done by a black negro man with a cap on. He said that after the shooting was over the negro ran north. This would be but cumulative of other testimony introduced upon the trial of this case.
We do not think the learned trial judge abused his discretion in refusing the motion for new trial. We do not think it likely to produce a different result upon another trial. The affidavits attributed to appellant and his relatives are contrary to their testimony as given upon this trial, and the other falls within some one or the other of the classes of testimony enumerated in the general proposition above laid down, as not being that character of evidence for which a new trial should be granted.
This record shows that on Sunday night before the homicide on Monday night, appellant and deceased had a difficulty. Deceased struck appellant in the head with a brick knocking him down and caused pain and bloodshed. Appellant thereupon shot at deceased with a pistol. After the affray was over appellant went to a doctor *Page 515 for treatment and the latter placed a bandage around appellant's head, which bandage was still on it when the officers arrested him after the shooting. Deceased was sitting out in front of a little store a few blocks from where appellant lived with his mother on Monday night. The shooting occurred at night. Directly after the shooting deceased made the statement that he was shot by appellant. A witness who was present at the scene of the shooting said that he saw the party who did the shooting run under a street lamp and that his head was bandaged. Two officers reached the scene within ten or fifteen minutes after the shooting and were told by deceased who shot him. They went at once to the home of appellant's mother and found him there in the back yard and in an excited condition. They asked him what was the matter and he said he had been engaged in a shooting scrape. These officers denied the presence of the uncle and sisters of appellant at said house at the time. It appears altogether unlikely that the introduction of such of the evidence set out in the affidavits as would be competent, would produce a different result upon another trial.
No error appearing, the judgment of the trial court will be affirmed.
Affirmed.
ON REHEARING. February 13, 1924.