Trigg v. State ( 1924 )

Complaint is made that we did not discuss an alleged error in overruling the motion for new trial, one ground of which was purported newly discovered evidence from a witness by the name of Jesse Wade.

Within thirty minutes after the verdict of guilty was returned attorneys for appellant were in consultation with this witness, and within an hour had an affidavit from him which was attached to the motion for new trial. The facts set up in this affidavit comport with the defensive testimony. As soon as attorneys representing the state heard of this affidavit they got in communication with the witness, took him to the district attorney's office, and there Wade made another affidavit contrary to the one attached to the motion for new trial. He was shown the affidavit first made by him and in his second statement says:

"The facts stated in that affidavit (referring to the first) are untrue and incorrectly stated."

His second statement is in accord with the state's evidence upon the trial. Contained in the latter part of such second affidavit occurs this recital.

"Whenever the statement made on February 24th, 1923, contradicts the statement now made by me, then the former statement is untrue in that particular."

The affidavit attached to the motion for new trial was dated February 24th and the one contradicting it on February 28th. Upon hearing of the motion for new trial Wade testified that he was intimidated into making the second affidavit, but winds up his testimony by acknowledging that the statements therein contained were true. The presence of Wade at the court house and the manner in which counsel for appellant got in communication with him appears to be shrouded in mystery. Wade says some man told him he might be wanted as a witness for the defense, and requested him to be present at the court house on the day of the trial; that in compliance with said request he did remain in the court room during the entire trial; that he does not know who the man was and could not identify him, but says it was neither appellant nor any of his attorneys. The only information derived from the record as to how the attorneys got in communication with this purported newly discovered witness is that within thirty minutes after a verdict was returned some person, — and no one could say whether it was a man or a boy — is claimed to have notified one of the attorneys that a witness was in the court house who knew something about the case; this mysterious individual is purported to have brought Wade into the room for consultation with the attorneys, but nobody seems to know who it was.

In explaining his ruling with reference to the matter under discussion the trial judge gives three reasons for denying the motion for new trial in so far as it was based upon the purported newly discovered evidence of Wade; first, that he did not regard the testimony of Wade as newly discovered; second, that he did not believe the facts stated by Wade in his first affidavit to be true because it was contradicted in every material particular by his subsequent affidavit, and was contradicted by the evidence of every witness upon the trial save that given by appellant himself; third, that he was satisfied if Wade had been present and testified upon the trial to the facts set out in his first affidavit it would not have affected or changed the result of the trial.

It is not our purpose to go into any general discussion of the rules governing courts with reference to purported newly discovered evidence as ground for new trial. The subject is fully covered in Branch's Ann. P. C. pages 124-131 inclusive. In Burns v. State, 12 Texas Ct. App. 269[12 Tex. Crim. 269], Judge Willson says:

"Application for new trial upon this ground (newly discovered evidence) will be scrutinized with much strictness. They are addresses to the discretion of the court, and where the court has refused such an application, the appellate court will not reverse, unless it shall appear that the court below has abused its discretion, and that thereby injustice may have been done the party."

We observe no abuse of discretion by the court in overruling the motion. It occurs to us he was amply justified in doing so.

The soundness of the original opinion is questioned in disposing of the bill complaining at the introduction in evidence of the coat worn by deceased at the time of the killing. We entertain no doubt that the opinion is sound in holding that such evidence did not call for a reversal. Our former opinion contains this expression: "By the record in the present case we have observed no legal reason for receiving the testimony mentioned." Upon further consideration we have concluded such statement should be withdrawn. The question of blood stains on the garment does not enter into the present case. The coat was originally dark blue but was old and faded to a purplish color. No blood stains were apparent or visible thereon. This however would appear to be immaterial. Whether or not the garment bore blood stains if it was calculated to elucidate any issue in the case it was properly admitted. The state contended that deceased was standing on the sidewalk doing nothing and was unaware of appellant's presence, that appellant, with his pistol drawn, came up behind deceased and shot him six times in the back. For this reason the location of the wounds was material to establish the State's theory as to the manner of the killing. To establish the fact that the shots were fired into the back of deceased the coat was admissible. It would be immaterial that the same fact was shown by other evidence. If the state had desired to so proceed the coat might have been identified and offered in evidence as showing shots from the rear before any other witness testified as to location of wounds on the body of deceased. It would furnish no more ground for objection to this testimony under the facts of the present case than would have been tenable had the state proven by one witness that appellant shot deceased in the back, and then been met with objection when another witness was offered to testify to the same fact. The rule is stated by Mr. Branch in § 1855, of his Ann. P. C. at page 1031:

"It is permissible to introduce bloody clothing in evidence only when the introduction serves to illustrate some point or solve some question, or serves to throw light upon the matter connected with the proper solution of the case, and under no other circumstances; but whenever the introduction of such clothing would, in the light of the whole case, aid the jury in arriving at the very truth of the matter, the court should not hesitate to admit its production and exhabition."

Many cases are cited in support of the text which is in accord with Underhill's Crim. Ev., 3d Ed., § 101. The introduction of the coat in evidence in the present case was calculated to aid the jury in arriving at the very truth of the manner of the killing and the position of the parties. Dozier's case, 82 Tex.Crim. Rep., 199 S.W. 287, furnishes an illustration where clothing of deceased threw no light whatever on the manner of the homicide. In that case deceased was shot in the back of the neck just below the edge of the hair, the bullet coming out in front just under the left jaw. There was no other wound on the body. The bullet did not pass through any clothing of deceased. It is apparent that the tender or introduction in evidence of the overcoat worn by him at the time of the killing was entirely immaterial, threw no light upon the transaction whatever, and was offered for an improper purpose.

Believing proper disposition was made of the case upon original submission the motion for rehearing is overruled.

Overruled.