ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.In his motion for rehearing appellant urges that we were in error in holding that the trial court properly overruled his motion for new trial based upon the newly discovered evidence of the witness McMullen.
Appellant brought himself squarely within the rule that the evidence sought from the said witness vzas newly discovered, and that there was no lack of diligence in the failure to sooner discover it.
It must be borne in mind that appellant’s defense was based upon the claim that he acted in self defense in shooting Box, predicated upon apparent danger as it appeared to appellant from his standpoint at the time of the shooting. There is no conflict in the evidence that Box placed his hand back of his wife and daughter. It was the contention of the State, based upon the testimony of Box, his wife and daughter, that he did not reach behind them until appellant raised his gun in a shooting position, and that he then made the movement to push them down under the hood of the car to protect them from the *350threatened shot. The car in which Box. his wife and daughter were riding was a coupe with a shelf behind the single seat. It was the contention of appellant and his wife that appellant did not raise his gun to shoot until Box “threw his hand over behind the seat of the car * * * and I shot him. I figured he was getting a gun and I shot because I thought he was getting a gun to shoot me with.” The evidence that McMullen would give if present is set out in our original opinion save as contained in the last paragraph of his affidavit, which is as follows:
“Truman Henson did not raise his long or double barrel gun until Box had stopped the car and reached over behind the seat of the-car.” (Italics ours.)
For the State the witnesses who testified to the immediate facts of the shooting were Box, his wife and daughter, and for appellant, himself and his wife, all interested witnesses. This being true, it is appellant’s contention that the evidence of McMullen should not be held cumulative, and that to so hold would be in conflict with Taulbee v. State, 133 Tex. Cr. R. 530, 113 S. W. (2d) 182; Abramson v. State, 120 Tex. Cr. R. 11, 47 S. W. (2d) 303; Whatley v. State, 117 Tex. Cr. R. 447, 36 S. W. (2d) 751. We think appellant’s position is supported by the authorities cited.
It is unquestionably the law that a motion for new trial based upon newly discovered evidence is addressed to the sound discretion of the trial court, and that it is not error to overrule such a motion unless in the opinion of the trial court such new evidence would likely produce a different result. In determining this the newly discovered evidence must be viewed in the light of the whole case. It is in evidence here that a prior shooting between these parties had taken place in which appellant then used a shotgun and Box a pistol, according to appellant’s testimony ; he claiming that Box fired first with the pistol. Appellant was indicted for assault with intent to murder growing out of this former shooting. Upon the trial the jury accepted appellant’s version of the matter and acquitted him. The newly discovered witness, McMullen, was acquainted with all the parties, knew of trouble between Box and appellant’s father as well as that between appellant and Box. Coming in sight of the parties under the circumstances as claimed by the witness, with knowledge of the former difficulties, the witness would be apt to take note of movements of both more than would a witness who was not so informed. The distance of the witness from the scene of the difficulty could, of course, be considered by the trial judge in passing upon the probable effect of the evidence of *351the new witness, but where the proposed evidence is in consonance with that of appellant and his wife, and being the only disinterested witness upon the vital issue as to when Box made certain movements with his hands, and the significance of these movements to appellant, we think the trial court fell into error in concluding, if he did, that the proposed new evidence would not likely change the result upon another trial. The witness made affidavit that he saw the things asserted by him, and under the circumstances here present the jury should have an opportunity to appraise his evidence.
Appellant’s motion for rehearing is granted; the judgment of affirmance is set aside, and the judgment of the trial court is now reversed and the cause remanded.