The opinion of the Court was delivered by
Todd, J.The defendant was indicted for the murder of one Harman Matta, under which he was tried, convicted of manslaughter, and sentenced to ten years imprisonment in the penitentiary, and from this sentence has appealed.
There is no assignment of errors filed in this Court, but we find in the record two bills of exception which present the grounds, as we learn from the brief of defendant’s counsel, relied on for a reversal of the judgment.
The first bill was taken to the refusal of the judge a quo to admit proof of threats made by the deceased against the accused, but which were not communicated to the accused.
Under the authority of all the eminent writers on criminal law and the frequent adjudications of this Court, this evidence was properly excluded. Wharton, Homicide, 215; 21 An. 475; 22 An. 468.
The second bill was taken to the ruling of the judge refusing a new trial. The motion for a new trial was upon the ground of newly discovered testimony — that is, testimony discovered after the trial. It appears from the bill that the ruling of the judge upon this point was based mainly, if not exclusively, on his conclusion that due diligence had not been used to procure the evidence on the trial. This question of evidence was peculiarly within the discretion of the judge of the first instance, and this Court has invariably refused to review such ruling, involving merely the legitimate exercise of this discretion and presenting purely unmixed questions of fact. 11 An. 478; 21 An. 273; 22 An. *1345468. Besides, as far as we can gather from the bills, the evidence referred to was of the identical character with that which had been offered on the trial and properly refused as shown above.
We have closely scrutinized the entire record and we can find no ground whatever on which the accused can be relieved.
The judgment and sentence appealed from are, therefore, affirmed with costs.