The offense is murder, and the punishment is eight years in the penitentiary.
The state's testimony shows that the deceased was killed by the appellant under circumstances showing malice. The appellant defended on the ground of self-defense and introduced testimony tending to show that the appellant believed that the deceased had raped the daughter of the appellant. There was testimony in the record which, if true, was sufficient to show that deceased and appellant had met since appellant had been informed of the alleged rape and prior to the time of the fatal shooting. The deceased was in company with his brother at the time he was killed.
Appellant complains of the following portion of the court's charge:
"You are therefore charged that if you find and believe from the evidence any such threats or threat were made, or threats as testified to by the witnesses on the stand in this case, were communicated to the defendant, whether they were in fact made or not; and you further believe at the time the defendant killed the deceased, Otho Martin, if he did, that it reasonably appeared to the defendant at the time from the acts or words, if any, of the said Otho Martin and Wiley Martin, or either, or from some act then done by the said Otho Martin and Wiley Martin, or either, that he, the said Otho Martin and Wiley Martin, or either, was about to carry out the threat or threats so made, if any, or if you have a reasonable doubt thereof, then, in that event, you will find the defendant, Dan Stephens, not guilty."
Appellant objected to this charge on the ground that it does not submit the acts or conduct of deceased and his brother. It will be observed from the above charge that the court instructed the jury in effect that if they believed at the time the defendant killed the deceased, Otho Martin, if he did, that it reasonably appeared to the defendant at the time from the acts or words, if any, of the said Otho Martin and Wiley Martin, or either, or if from some act then done by the said Otho Martin and Wiley Martin, or either, he was about to carry out the threat or threats so made, if any, or if they had a reasonable doubt thereof, then in that event to find the defendant not guilty. It seems to be appellant's contention that the word "or" as used in said charge was erroneous and that instead the word "and" ought to have been used each time. We cannot agree with this contention. We think the charge as written clearly and unequivocally gave the appellant the right to act if it appeared to him that the deceased *Page 164 and his brother, or either of them, were attempting to carry into execution any threats they had made. This was as clear and as favorable presentation of the matter as appellant could ask.
Appellant cites the case of Brookerson v. State,242 S.W. 234, as authority for his contention. We think the charge in the instant case was written to cover the very objection that was made to the charge in the Brookerson case, supra. In the Brookerson case, the charge was so framed as to fail to take into account the effect of the joint assault or action of the two parties whom he claimed were assaulting him. In the instant case, the jury are pertinently directed to take into account the acts or words, if any, of the said Otho Martin and Wiley Martin. In other words, in the instant case, the jury were directed to take into account the joint assault or joint action of both Otho and Wiley Martin.
Appellant also complains at the court's action in refusing to permit him to introduce in evidence a subpoena which had been issued for a witness who was not present at the time of the trial. The court, in qualifying this bill of exceptions, says that the evidence was offered near the close of the trial, which had lasted about three days, and that no application for a continuance was made and no testimony offered in open court of the sickness of the witness named in said subpoena or his present whereabouts. We think appellant has failed to bring himself within the rule stated in the authorities cited by him.
Appellant also complains at the courts' action in refusing him a new trial because of newly discovered evidence. The motion for a new trial is insufficient to show error, in that it fails to show by direct averment or otherwise that said newly discovered testimony would likely bring about a different result in the event of another trial as does also the affidavit of the witness attached to said motion, and it also fails to allege that said testimony is not cumulative, collateral or impeaching. O'Hara v. State, 124 S.W. 95. McDonald v. State,179 S.W. 880. Madrid v. State, 161 S.W. 93.
We do not believe that the trial court abused his discretion in refusing to grant a new trial because of newly discovered evidence. We have carefully examined the record in this case and have reached the conclusion that appellant is without just cause of complaint and so believing, the judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been *Page 165 examined by the Judges of the Court of Criminal Appeals and approved by the Court.