Upon an indictment and trial for murder appellant was found guilty of manslaughter and his punishment assessed at five years imprisonment in the penitentiary.
Appellant and deceased, Ben Carter, were negroes with families and lived several miles apart. Appellant had a daughter Effie, about seventeen years old. Deceased had a son Clarence, about grown. Clarence had been courting Effie and waited on her from week to week. They had agreed to be married, or at least Clarence had asked appellant for *Page 599 her. Appellant had no particular objection to Clarence, but it seemed Effie had another beau and the indications are he preferred the other beau to Clarence, and while he did not decline to let Clarence have her, he deferred the marriage.
Appellant left his home one morning, went several miles away on some business and did not return until after night between 9 and 10 o'clock. That morning Clarence got a buggy, went to the school where Effie was attending, got her, they were married, and he took her to his father's. That night when appellant returned home, his wife told him that Clarence had taken Effie, and she understood that they had married. Appellant, thereupon, late at night, got on his horse, took his shotgun, loaded it and went the several miles to deceased's, reaching there about 1:30 at night. Deceased and all his family, including Effie and Clarence, were in bed asleep. Appellant hailed and woke them all up. Deceased's house had three rooms to it, two adjoining and a kitchen attached to one of them. Clarence and Effie were in one room; the deceased, his wife and his other children were in the other room. There was a door from each room, about the center of it, to the outside and a door in the partition between the two rooms. When appellant woke deceased and his family, deceased got up, lit a light and went to the front door of the room he occupied and called to know who it was. Appellant told him, and demanded to know if his daughter Effie was there and demanded that she come out and that deceased have her to come out. Deceased called to her and told her that her father wanted her. She had heard his call for her but did not go to the door or out to him. The testimony up to this point seems to be uncontradicted. The State's testimony by deceased's wife and his two daughters and Clarence was all to the effect that appellant began cursing and abusing deceased and his family, denouncing their act of stealing his daughter and making serious threats. Appellant in effect denies this and claims that deceased was doing the cursing and abusing him. Who was right in this matter, was a question for the jury. Deceased's wife and his said children testified that without any provocation appellant then shot and killed deceased. That he shot and killed him is unquestioned. The deceased's family further testified, all of them, that appellant shot deceased and that then Clarence got the gun in the house and at once shot appellant, striking him in the jaw and side of the neck, it seems with small shot; at least the evidence does not show that appellant's wound was serious. Appellant claims that he was shot first and that he then shot.
The court in a proper charge submitted all of the issues raised by the testimony, including self-defense and manslaughter. There is no complaint at all of the court's charge.
The sole question is based on the court's refusal to give appellant a new trial on what he claimed was newly discovered testimony. The claimed newly discovered testimony was that of Ed Brent and appellant's daughter Effie. Their affidavits are attached to the motion for *Page 600 a new trial. The State contested the motion by proper pleadings and also attached the affidavit of Effie and of Brent to its contest. This matter is not presented by any bill of exceptions.
Brent's affidavit is to the effect that he was a deputy sheriff of said county and in his official capacity went to deceased's place soon after he was killed, saw his body and the wound that caused his death. "That the wound on deceased was on his side and extended almost across his body and the same size up and down and was considerably larger than the wound on defendant."
Effie's affidavit was to the effect "that her husband shot her father before her father shot Ben Carter; that she has not before making this affidavit made this statement to anybody except her mother; that she denied this statement to the attorney for her father on the day he was tried for killing the said Ben Carter; that she made a contrary statement the morning after the killing but that such statement was made at the instance and under the direction and orders of her husband, Clarence Carter."
In the State's contest it attached her affidavit made before the then district attorney as a notary public to the effect that her father "told me to come out there, and my father cursed at me and told me to come on, and then the next that I heard was the shot, and then Clarence Carter shot." In contradiction of her affidavit attached by appellant to his motion, the State three days later procured her affidavit to this effect, "that she can not say which one shot first, Clarence Carter or her father, Ben Jackson"; that the said affidavit she made which was attached to appellant's motion "was not explained to her and that she did not understand the contents of same; that it was not explained to her and that her mother, Tishie Jackson, told me to sign same and showed me where to sign my name." Appellant claims that this affidavit from her was obtained by the special prosecuting attorney, and criticises his manner of getting it.
The affidavits and record clearly show that when this latter affidavit of Effie was procured it was written by the said special prosecuting attorney, and that he and the deputy sheriff went to where the witness was, and the deputy sheriff's affidavit shows that when this attorney was talking to her she stated twice that her husband shot first; "that she finally told him that she didn't know which shot first"; that he then sent the deputy sheriff two and a half miles away for the justice of the peace; and that he went and got the justice of the peace and brought him back; and that Effie swore to said affidavit before the justice of the peace. The attorney's affidavits are to the effect that before the trial Effie was in attendance but that she then stated to them that appellant shot first and she would not say that her husband, Clarence, shot first. They do show in their affidavits, however, that Effie's mother had told them before that, that Effie had told her that Carter shot before appellant did. The affidavit of Mr. Brent, the deputy sheriff, further shows that he had been subpoenaed and attended *Page 601 as a witness at the instance of appellant; that he was present and sworn in with the other witnesses when the case went to trial; that he heard a part of the testimony but that while the trial was going on he went out of the courthouse and before he returned the testimony was concluded. He was not called for as a witness by appellant after the trial began. They claimed that they had had him subpoenaed for the purpose of proving that Clarence Carter had stated to him that he had a gun in the house at the time of the shooting; that they were informed that Clarence would deny that on the trial and that when he swore that he had the gun and that he had shot appellant, as shown above, they did not introduce the deputy sheriff.
Appellant made a motion to strike out the State's contest of his motion and the alleged affidavits of Effie Carter attached by the State to its contest. The court correctly overruled this. The State had the right to file a contest and the court should not have struck it out. A different question might be presented if appellant had made a motion to strike out the said affidavit of Effie sworn to before the district attorney as a notary public. For aught that appears, the court may have in passing on the matter excluded that affidavit from his consideration. Even if he did not, Effie in the affidavit attached by the appellant swore that she had made a statement (doubtless this one) the next day after the killing to the same effect. Hence, no injury could have occurred to appellant on that score.
This court has at all times and in all cases held, as stated by Judge White in his Ann. C.C.P., sec. 1149, that an application for a new trial on the ground of claimed newly discovered testimony "is closely scrutinized and is largely confided to the discretion of the trial court; and the disposition there made of it will not be disturbed on appeal unless it be apparent that the trial court abused its discretion to the prejudice of appellant. Burnes v. State, 12 Texas Crim. App., 270; Bell v. State, 1 Texas Crim. App., 598; Templeton v. State, 5 Texas Crim. App., 398; Shaw v. State, 27 Texas Crim. App., 750; West v. State, 2 Texas Crim. App., 209; Terry v. State, 3 Texas Crim. App., 236." This principle and these cases have been cited and approved in many later cases. One only need be cited. Gray v. State,65 Tex. Crim. 206.
The claimed testimony of neither Brent nor Effie Carter could have been newly discovered under the terms of the law. The record clearly shows that the appellant's attorneys before the trial knew that Effie Carter had stated to her mother that her husband shot first. The appellant knew that she was present on the night of the killing and must have seen and heard all that occurred. The law is, as stated by Judge White in said section, that "Where the testimony is of such a character as that it must have been known to the counsel for the defendant before the trial, it is in no sense newly discovered evidence. Burton v. State,33 Tex. Crim. 138. Where the witness was interviewed by defendant's counsel upon one phase of the case only *Page 602 and was not put upon the stand, his testimony upon another phase is not newly discovered. Williams v. State, 45 S.W. Rep., 572. Where it appeared that the proposed witness had been subpoenaed in the case but was not put upon the stand to testify, the testimony was not newly discovered. Powell v. State,36 Tex. Crim. 377; Halliburton v. State, 34 Tex.Crim. Rep.." This statement of the law by Judge White, and said decisions, have all the time been cited, approved and adhered to. It is needless to collate the later cases. But see Stewart v. State,76 Tex. Crim. 54; Henson v. State, 74 Tex.Crim. Rep.; Black v. State, 71 Tex.Crim. Rep..
The court's action in refusing appellant a new trial was correct under the law and record in this cause.
The judgment is affirmed.
Affirmed.
ON REHEARING. June 29, 1917.