The offense is murder. The punishment assessed is confinement in the state penitentiary for a term of 20 years.
The record reveals the following facts: About a week or ten days prior to the killing of Rudolfo Munoz, Ernesto Everett and Frederico Munoz became involved in a difficulty which resulted in serious wounds being inflicted upon the person of Ernesto. This created some ill feeling between the families. A complaint was filed against Frederico Munoz and his father, Rudolfo. On the day of the killing, they were arrested and charged with an assault to murder based upon the prior difficulty. A bail bond was prepared for them and they were permitted to go at large in search of sureties. While they were on the sidewalk in front of a drug store in the town of San Diego, appellant and his brother, Adan, drove up in a car and parked it at a corner just across the street from where Frederico, his father Rudolfo, and grandfather Santiago Munoz were standing. Appellant and his brother, Adan, learned that Frederico and Rudolfo were not in jail, and evidently were displeased about it, according to the state’s evidence. As soon as they had parked their car, appellant got out of the car and immediately started to walk to where the Munozes were standing with his brother, Adan, following close behind with a pistol in hand. The state’s evidence is that when appellant arrived at the place where Frederico was he began to strike Frederico and this precipitated a fight. During the encounter, they clinched and tussled down the sidewalk. While this struggle was in progress, Adan shot Rudolfo who fell just inside of the drug store and died almost instantly from the effects of the shots. All shots, some three or four, were fired by Adan, brother of appellant, and some of the shots struck the grandfather Santiago Munoz.
Under the facts here related, the court in his charge instructed the jury on the law of murder with and without malice, on the law of principals, on self-defense, and an instruction on the law of suspension of sentence. No objections were urged to the court’s charge. The only question presented to this court for review relates to the court’s action in overruling his motion for a new trial based on what he claims to be newly discovered evidence; in this, that some of the state’s witnesses *81testified that the deceased was shot twice — once in the left breast and once in the back above the hip — that a few days after the trial, appellant’s father went to see the undertaker at Alice who had prepared the body for burial and learned from him for the first time that the deceased had but one bullet wound on his body, at least he did not find but one.
No reason is assigned why the appellant’s father or his attorney failed to interview the undertaker prior to the conclusion of the trial. The killing took place on the 22nd day of August, 1947; a preliminary hearing was had and the grand jury returned an indictment against him in the early part of October, 1947, charging him with the offense. The record fails to show any diligence to discover the alleged newly discovered evidence prior to the trial. The record affirmatively shows that the undertaker was available; he lived only about ten miles from the court house. One accused of crime will not be permitted to remain idle until after he is tried and convicted and then seek a new trial on the ground of newly discovered evidence which could have been discovered before the trial by the exercise of ordinary diligence. See Loyd v. State, 105 Tex. Cr. R. 91 (286 S. W. 1096); McVerse v. State, 103 Tex. Cr. R. 140 (280 S. W. 583); Holmes v. State, 106 Tex. Cr. R. 515; Jackson v. State, 115 Tex. Cr. R. 408 (28 S. W. 2d 546); Arnold v. State, 115 Tex. Cr. R. 189 (29 S. W. 2d 762); Harris v. State, 117 Tex. Cr. R. 201 (35 S. W. 2d 1046); DeLong v. State, 122 Tex. Cr. R. 290 (55 S. W. 2d 107); and Daniel v. State, 123 Tex. Cr. R. 5 (57 S. W. 2d 101).
No reversible error appearing from the record, the judgment of the trial court is affirmed.
Opinion approved by the Court.