(dissenting on rehearing).
The only matter at controversy in this case is the exact instant of time in which Mr. Henson leveled his shotgun at Alex Box. There is no controversy over the fact that Henson was standing by the roadside at or near a clump of trees and saw Box coming down the road; that he had his loaded shotgun in his hand at the time he was observed by Box; that the mere fact of Henson thus standing by the road was a menacing fact and impressed Box as such. The testimony is clear and uncontradicted that prior to or just at the time the shot was fired, Box threw his hand back of his wife and girl and pushed them down before the shot was fired, but such transactions took place at practically a split second apart because of the fact that the little girl got some shattered glass in her eye and the wife had a hand cut with glass. These facts are not denied.
The newly discovered witness’ statement finally concludes, “That Truman Henson did not raise his long or double-barreled gun until Box had stopped the car and reached over behind the seat”.
To reverse this case because of the newly discovered witness would be to allow him to testify that appellant merely stood in this menacing attitude with a shotgun in his hand until Box decided that Henson would shoot, and after making such decision, Box pushed his wife and daughter out of danger and sat up and let appellant fill his head with shot.
I am impressed with the idea that the trial court did not believe that the newly discovered witness could possibly have been paying such close attention to this transaction as to have' *352told with exactitude the split-second difference between the action of the reaching of Box and the shooting by Henson, although Henson says that Box’s hand was still in the back of the car when he shot him, and furthermore, that the newly discovered witness could have been minutely observing both parties so carefully that he could have told what they were both doing at the same time, especially from his viewpoint about 100 yards away in the woods from the scene of action. If he be thus allowed to testify, there would be doubt that the testimony would probably be true.
It is said in 31 Tex. Jur. p. 284, sec. 84, as follows:
“The probable truth of the newly discovered evidence is an indispensable requisite to the granting of a new trial upon the ground here under consideration. Stated in another way, the rule is that a new trial on the ground of newly discovered evidence will be denied if it appears from facts proved at the trial, or from controverting affidavits, or otherwise, that the new evidence probably is not true. And so the motion is properly denied when it appears that the new witness is not worthy of belief. The probable truth of the new evidence is primarily a question for the trial court, and its conclusion will be disturbed only when an abuse of discretion is shown.”
This doctrine is supported by an array of cases from this court.
Again, the trial court surely did not believe that the newly discovered evidence would have changed the result of the trial. Undoubtedly Mr. Box made no effort at this time to shoot appellant, although not seriously wounded, but retreated from the scene. Appellant’s hawk-shooting excuse for being armed with a double-barrel shotgun at the roadside was doubtless not believed by the jury, they not being as considerate to him as when he was crow shooting at a former difficulty when Mr. Box was shot, for which shooting the jury acquitted appellant. Doubtless the trial court did not think the testimony, if present, would have affected the result, and I agree with that conclusion.
There was practically the same testimony shown by all parties, and the physical facts show that appellant’s wife and daughter were below the windshield at least far enough to escape the bullets that shattered it at the time the shots were fired.
We again quote from 31 Tex. Jur. p. 285, sec. 85, as follows:
*353“The newly discovered evidence should not be such as merely sustains a technical defense, but should go to the merits. The Criminal Reports abound in cases that assert and apply the rule that a new trial will not be granted unless the new evidence is of such a character as will probably change the result if produced upon another trial.”
After citing numerous cases, the text continues:
“ ‘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 interefere with his action in denying the motion, if under the facts no abuse of his judicial discretion is shown.’ ”
In the instant case, according to the appellant, he had shot at Mr. Box three times, and doubtless the jury, and any other jury, would think that it was time that this shooting was stopped. Under the physical facts here presented, we do not think that the testimony of this timid witness would produce a different result than the verdict in this case.
I also think that under the facts as herein detailed by appellant, he was not entitled to a charge on self-defense, not limited by one on provoking the difficulty.. I think his position by the roadside with a shotgun in his hand could not fail to provoke a man whom he had previously shot from attacking, or attempting to attack, or ward off the attack of a,ppellant. I know of nothing that could be more provocative than to suddenly come upon one’s enemy who had previously shot the injured person, and find such a one standing by the roadside with a shotgun in his hand; and if such an attitude of appellant was reasonably calculated to provoke Mr. Box to reach for a pistol or gun, which it seemed he did not have, then appellant had forfeited his right of perfect self-defense.
I believe the careful trial court did not abuse his discretion in refusing a new trial for this belated testimony.
My brethren having ordered the granting of the appellant’s motion for a rehearing, I here respectfully enter my dissent thereto.