Appellant ably and urgently insists that we erred in sustaining the action of the lower court in refusing a new trial because of newly discovered evidence. We have gone over the record again but are unable to come to any different conclusion. Appellant, his mother, three sisters and an uncle named Wash McCarty testified as witnesses for him on his trial. Each swore to facts relied on in support of the motion for new trial. Their affidavits as well as their testimony given on the trial have been again carefully examined. The scene of the shooting was a few blocks from appellant's home. It is claimed that shortly after the shooting a negro named Moore ran through appellant's yard and said, "I have got him," meaning that he had killed deceased; also that Moore had been there that afternoon and stated that he was going to kill deceased that night; also that Moore had stated to two of the affiants subsequent to this conviction that he had killed deceased. The affidavits of said witnesses and their testimony as given on the trial present numerous and glaring contradictions, an enumeration of which would add nothing to this opinion. It is manifest that the proposition that Moore and not appellant did the killing was in no sense newly discovered by appellant or his witnesses. If they had disclosed this fact *Page 516 to appellant's attorney, he would doubtless have taken steps to find out other facts, if such there were, corroborative of that theory. Not only were such steps not taken but appellant swore positively on the trial that he did not know who did the killing, and none of his kinsfolk disclosed what they now say they knew about it. We know of no way in which this can be brought within the rule requiring that the evidence be in fact as well as allegation, newly discovered. How can it be asserted that diligence in discovering and presenting his defense was shown by the accused? He alleges in his motion that he and most of his relatives knew these matters at the time of trial, but were afraid to disclose them because they thought Moore would kill appellant. There is nowhere any allegation that appellant did not know these facts, and none that he had not disclosed them to his attorney. There is no affidavit by appellant's attorney supporting the motion. On page 127 of his Annotated P.C. Mr. Branch cites many cases supporting the following proposition:
"Where it appears that defendant or his counsel knew of the alleged new testimony at or before the trial, or that defendant knew that the proposed new witness was present when the transaction occurred, or where the alleged new testimony is of such a character as that defendant must necessarily have known of its existence prior to the trial, and the trial court in the exercise of its sound discretion has refused a new trial, the judgment will not be reversed to permit him to take advantage of his own negligence and obtain a new trial to get testimony which he should and could have had at the trial."
We are unable to conclude that any of the material or competent evidence was newly discovered.
We note appellant's criticism of our holding that newly discovered evidence consisting of statements by Moore that he killed deceased, would not be admissible. Our views are further expressed in accord with those announced in this instance, in Walsh v. State, 85 Tex.Crim. Rep.; Sanchez v. State,90 Tex. Crim. 518; Staton v. State, 93 Tex.Crim. Rep., 248 S.W. Rep., 359. The case of Chenault v. State, 83 Tex. Crim. 104, 201 S.W. Rep., 657, is easily distinguished. The only evidence in any connecting the accused with the crime in that case, came from admittedly tainted sources. The main State witness admitted his commission of a burglary in which he implicated the accused. The only corroborating witness was under numerous felony indictments. In connection with the motion for new trial it was shown that both of said witnesses since the conviction of Chenault had pleaded guilty, one to eight burglary charges and the other to nine. Three witnesses made affidavits in support of the motion for new trial affirming that the main State witness had told them that he and a party other than Chenault had committed the burglary upon which the conviction was had. Under these circumstances we held the court should have granted a new *Page 517 trial. The evidence was newly discovered and admissible. There was no question in the case as to the admissibility of a confession or unsworn statement of an outsider to the record and manifestly the proposition was not in the mind of the court when we wrote. There is nothing in that case at all parallel to the instant case and what we said in that case was with reference only to the case then before us and cannot be used to support the contention of appellant in this case.
The motion for rehearing will be overruled.
Overruled.