Wormley v. State , 65 Tex. Crim. 48 ( 1912 )

Appellant was convicted of an assault to murder, and his punishment assessed at three years confinement in the State penitentiary.

We can not consider the ground alleging that the court erred in overruling the application for a continuance. There is no such motion in the record, and no bill of exceptions was reserved to the action of the court in overruling same, if any such motion was presented. Wesley v. State, 60 Tex.Crim. Rep..

The newly discovered evidence alleged is insufficient to authorize a reversal of the case. The fact that the alleged injured party had once been sent to the penitentiary for theft, but had been pardoned and his citizenship restored, would not affect the admissibility of his evidence. It might affect his credit as a witness, but it has been expressly held by this court in Barber v. State, 35 Tex.Crim. Rep., that newly discovered evidence will not authorize a new trial if the purpose of such evidence be merely to impeach or discredit a witness who has testified on the trial. See also Butts v. State, 35 Tex.Crim. Rep.; Scruggs v. State, 35 Tex.Crim. Rep.; Franklin v. State,34 Tex. Crim. 203; Grate v. State, 23 Texas Crim. App., 458.

The court did not err in not presenting the issue of aggravated assault. The defendant's testimony, if believed, presented self-defense, and this was fully presented in the charge of the court, and there is no complaint in the motion for a new trial that the court did not fairly submit that issue. The State's case would make a case of assault to murder. The evidence shows that appellant and Jim Peterson had trouble in the morning in the field while plowing. That he run from Peterson, and then went to a residence, secured a Winchester rifle, and that afternoon returned to the field and demanded a settlement. Failing to get it, he shot Peterson while he was running from him. As before stated, the evidence from the State's standpoint fully supports the verdict, while the evidence of the defendant would justify him in his action, but does not present a state of facts that if death had resulted would reduce the offense to manslaughter, if he was guilty of any offense.

These are all the grounds stated in the motion for a new trial, and we are not permitted under the decisions of this court to consider grounds stated in the assignments of error, filed later on, not included in the motion for a new trial. Harvey v. State, 57 Tex.Crim. Rep..

The judgment is affirmed.

Affirmed.