*467ON THE MERITS.
MORROW, Presiding Judge.Because of correction of the record the appeal is reinstated.
Manse Robinson, husband of the appellant, was shot and killed. They were alone in their home at the time. They had been married for some six years, lived together part of the time and were separatd part of the time. In the evening before her husband come home, she went to a party. She returned in company wfith her cousin, a negro. According to her version, after her cousin departed, her husband began to quarrel, set fire to her dress and threatened to kill her with a pistol. In setting fire to her dress he laid the pistol down. She seized it. During the struggle which ensued over the possession of the pistol, it fired and the deceased was killed. The seizure of the pistol was for her self-protection, and the shooting was accidental. The appellant feared the deceased, as he had on former occasions threatened to kill her. After the shooting, she called her neighbor, Lucille Green, who testified that after hearing two pistol shots, she was called by the appellant. Upon entering the house the witness observed the deceased lying on the floor in his underclothes, apparently dead, and the appellant stated that she had killed him.
A sister of the deceased testified that after the funeral the appellant said: “Yes, I killed your brother and I will kill you.”
The complaint that in his address to the jury the state’s counsel misquoted the evidence is untenable as there is no certificate of the trial judge that the evidence was misquoted.
The testimony of the appellant that she acted in self-defense is not conclusive upon the state. Hawkins v. State, 99 Texas Crim. Rep., 569, 270 S. W., 1025; Koch v. State, 110 Texas Crim. Rep., 405, 10 S. W. (2d) 545.
In part the alleged newly discovered evidence is a declaration by Beatrice Robinson made to the appellant in a conversation with her. Her presence at the time the declaration is charged to have been made seems conclusive against the contention that the evidence was newly discovered. The proffered new testimony of Allen, the justice of the peace, and Jones that they examined the premises and witnesses immediately after the homicide and reached the conclusion that it was accidental, apparently would be mere conclusions of the witnesses, and its admissibility is not perceived. The alleged new testimony of the witnesses mentioned to the effect that at the time of their visit to the body of the deceased at his home the appellant declared that the killing was accidental growing out of a struggle over a pistol, apparently could not be newly discovered for the reason that the declaration, if made, was known to the appellant. The right to a new trial upon newly discovered evidence is controlled by subdivision 6 of article 763, C. C. P., which, as construed, requires that a verified motion must show that the evidence came to the knowledge of the defend*468ant since the trial; that failure of its previous discovery was not due to want of diligence; that upon another trial there would probably be a different result; that the evidence was competent on an issue material to the merits of the case and not merely cumulative. See Vernon’s Ann. Tex. C. C. P., 1925, vol. 3, p. 13, note 25. In many particulars the requisites mentioned are wanting in the motion under consideration.
In view of the record we are not prepared to say that the verdict of the jury was unsupported by the evidence.
The judgment is affirmed.
Affirmed.