ON MOTION FOR REHEARING.
MORROW, Presiding Judge.In the motion for rehearing it is made apparent that at the cafe in which the injured party was shot there were a great number of people present at the time of the occurrence.
The new evidence upon which appellant relies in his motion for new trial is the affidavit of Juan Ramirez. According to the affidavit, Ramirez was in the restaurant in which the offense is claimed to have been committed. From the affidavit we quote: “Just a little bit after I went in, the Mexican that got shot, I didn’t know his name then, who is Pedro, said that he was going to throw Isidor, the boy that did the shooting, out of the house. * * * I saw Pedro getting a beer bottle out of his pocket, looking at Isidor, muttering and cursing. Pedro was drunk. It looked like he was about to get the bottle out when Isidor hit at him just as the gun went off. * * * I went on the outside when Pedro was taken out and I noticed that Pedro didn’t have the bottle in his pocket then but I never saw the bottle after that.”
The affidavit was made in Dawson county, on the 28th of November, 1932, before Olive Meadors, a notary public.
*453Appellant was indicted on November 11, 1932. He was without knowledge that Ramirez, the maker of the affidavit, was present at the time of the -shooting until his brother obtained notice that Ramirez was present.
Raymond Cruz, a brother of the appellant, testified upon the hearing of the motion for new trial that he was directed by the attorneys to find all persons who were present at the time of the shooting. What efforts the witness made to this end is not set out in any detail. Raymond Cruz was present in the cafe a few moments after the shooting. According to his testimony, a number of persons were present, some of whom he knew and some of whom he did not know. Among those whom he did know was Jesus, who was a brother of the maker of the affidavit. Raymond Cruz was well acquainted with the Mexican population in the neighborhood. The appellant was never sent to jail. His brother helped him in the trial. They had both lived in Big Spring during most of their lives. No reason is given for the failure to interview or produce at the trial the testimony of the other persons mentioned above who were present at the time of the shooting. The affidavit of Ramirez, according to the testimony, was prepared at Big Spring by the attorneys for the appellant. Apparently the appellant’s brother, without having seen Ramirez or having talked to him, went to his dwelling-place and presented a prepared affidavit, which Ramirez signed and swore to. Ramirez lived at Lamesa. He was not present at the trial. No reason, is given for the failure to produce him at the trial.
The action of the trial judge in refusing to grant the motion is regarded as binding upon this court. It is thought that the comments of this court in the case of Hughes v. State, 50 S. W. (2d) 824, are applicable in the disposition of the present appeal. The remarks are quoted as follows:
“Among other things requisite before a new trial will be granted for alleged newly discovered evidence are that the testimony claimed to have been discovered since the trial must (a)’ probably be true, and (b) it must appear reasonably probable, and that it would change the result upon another trial. See Branch’s Ann. Tex. P. C., sec. 192, and cases thereunder cited; Northaf v. State, 91 Texas Crim. Rep., 378, 239 S. W., 215; 23 A. L. R., 1374; Gregory v. State, 105 Texas Crim. Rep., 674, 290 S. W., 176; McDowell v. State, 96 Texas Crim. Rep., 512, 258 S. W., 186. The probable effect of claimed newly discovered evidence is primarily for the trial judge who passes upon the motion for new trial, and the appellate court will not interfere *454with his action in denying the motion, if under all the facts no abuse of his judicial discretion is shown. Robinson v. State, 116 Texas Crim. Rep., 523, 28 S. W. (2d) 158. The bill of exception does not show the trial judge’s reasons for overruling the motion, but, in view of the evidence produced by the state upon the hearing of the motion, such reasons may not be hard to discover. He was well within his discretion with a safe margin over.”
The motion for rehearng is overruled.
Overruled.