Article 672,of the Code of Criminal Pro*213cedure lays down the several grounds upon which new trials' in cases of felony shall be granted, and among them is the following: “6. When new testimony, material to the -defendant, has been discovered since the trial.” It is also provided that a motion for a new trial, based on the ground of newly-discovered evidence, shall be governed by the same rules as those which regulate civil suits. Pasc. Dig., Art. 3137.
A standard author, treating of the subject, says : “ After-discovered evidence, in order to afford a proper ground for the granting of a new trial, must possess the following qualifications : It must have been discovered since the former trial; it must be such as reasonable diligence on the part of the defendant could not have secured at the former trial; it must be material in its object, and not merely cumulative and corroborative, or collateral; it must be such as ought to produce, on another trial, an opposite result on the merits; it must go to the merits, and not rest merely on a technical defense.” Whart. Cr. Law, sec. 3161.
Another standard author lays down the same rules substantially, as follows: “It is incumbent on a party who seeks a new trial on the ground of newly-discovered evidence to satisfy the court, 1st, that the evidence has come to his knowledge since the trial; 2d, that it was not owing to a want of due diligence that it did not come sooner; 3d, that it would probably produce a different verdict if a new trial was granted; and, 4th, that it is material to the issue, going to the merits, and not impeaching a former witness.” 1 Archb. Cr. Pr. & Pl., Waterman’s 6th ed., 178-26.
Decisions of the courts of Texas we believe to be in harmony with these rules.
That the affidavit of the witness by whom it is expected to establish the newly-discovered evidence should be produced in support of the motion "is a well-established general rule, though not without exception. The absence of such *214affidavit may, under certain circumstances, be accounted, for. Spillers v. Curry, 10 Texas, 143.
It is believed that the affidavit of the accused and that off the witness by whom it is proposed to establish the newly-discovered evidence bring the case- substantially, within-the rules above laid down. We do not wish to be understood, as holding, in so many words, that the proposed new testimony would, necessarily of itself produce a different result; yet,, when it is seen, as shown by the statement of facts, that no-witnesses who testified on the trial saw both the parties at the time the fatal rencounter took place, and when it is-shown by the affidavits accompanying the motion for a new. trial that the proposed - new witness was in view of both parties during the quarrel, and almost up to the very moment the fatal shot was fired, the testimony must have.a material bearing in determining whether the killing was self-defense of not. We think, under all the circumstances surrounding the case, as shown by the record, a new trial, should have been granted. The non-production of the witness on the trial was not owing to want of diligence in preparing the case, for trial.
Another ground for new trial, in the Article in the Code-above referred to, is when the court has misdirected the jury as to the law, or has committed any other material error calculated to injure the rights of the defendant. It is set out in the motion for a new trial that the court erred in its charge tax the jury, and that the verdict is contrary to law. The material, error committed, and which must necessarily have been, calculated to injure the rights of the defendant, is that the-judge, so far as we can determine, did not charge the jury in writing, as required by the Code of Criminal Procedure.
It is the duty of the judge, in a criminal case of the grade of felony, to deliver to the jury a written charge, in which. he shall distinctly set forth the law applicable to the case. Pasc. Dig., Art. 3059
*215‘ ‘ The general charge given by the court, as well as those given or refused at. the request of either party, shall be certified by the judge, and, in case of appeal, constitute a part of the record of the cause.” Code Cr. Proc., Art. 597 (Posc. Dig., Art. 3062).
There is no such charge in .the record before us. There is, it is true, a paper copied into the record purporting to be charges to the jury ; but this paper cannot be considered for any purpose,.because it is. wanting in the authenticity required by law, in that it is not signed or in any manner certified by the judge. Smith v. The State, 1 Texas Ct. of App. 408.
In examining whether the evidence supported the verdict it is necessary to examine the charge, whether excepted to or not. Higginbotham v. The State, 23 Texas, 575.
This ground for new trial we cannot consider; for the reasons above stated, there is no proper charge in the record.
For these errors the judgment must be reversed and the' cause remanded.
Reversed and remanded.