Henson v. State , 150 Tex. Crim. 344 ( 1946 )

KRUEGER, Judge.

The oifense is an assault with intent to murder. The punishment assessed is confinement in the state penitentiary for a term of two years.

The record reflects that appellant was a nephew by marriage of the injured party; that sometime in the year 1944 they had some trouble in which appellant shot Alex Box, his uncle; that as a result of that difficulty appellant was indicted for the offense of an assault with intent to murder; that the trial of said case had been set for February 12, 1945, but had been reset for February 13, of which appellant was informed by his attorneys, but the injured party had not been so notified. Consequently, since he was the State’s main witness, he went to Quit-man to testify for the State. However, when he arrived at the court house he was informed that the case had been reset and would be tried on the following day. Sometime in the afternoon, the injured party, accompanied by his wife and daughter, started for home in their Ford Coupe. On the way to their home, they had to pass near appellant’s house; that as they were driving along the road near appellant’s home, the injured party saw appellant suddenly emerge from some brush with a double-barreled shotgun; that he saw appellant level it at them, whereupon he told his wife and daughter to duck under the dashboard, and at the same time he placed his arm back of their shoulders, shoving them under the dashboard, when appellant fired, the first shot striking the windshield, breaking out nearly all of the glass; that Box (the injured party) undertook to get out of the car when appellant fired the second shot, striking him in the back of the head. The injured party, as well as his wife and daughter, got out of the car; that when they did so appellant ran across the road towards his home, where his wife was standing in or near to the yard of their home.

Appellant’s plea was self-defense basec upon apparent danger. He also filed a plea for a suspension of sentence in the event of a conviction.

He brings forward four bills of exception. By Bill No. 1 he complains of the action of the trial court in overruling his motion for a new trial based upon what he claims to be-newly discovered evidence. This evidence is set out at length in the affidavit of Ross McMullen, which is attached to the motion and made a part thereof. He states in his affidavit in substance that he was 29 years of age, had resided in Wood County all of his life, and was acquainted with Truman Henson, as well as his father, M. 0. Henson; that he was engaged in buying, cutting and selling logs; that on the day in question he was in the immediate vicinity of the place where the difficulty took place; that about sundown he was about 100 years west of the public road passing in front of Truman Henson’s house; that he saw Alex Box, his wife and daughter, coming along the road in a Ford Coupe; that he saw appellant standing about five to fifteen feet west of the road; that Box was driving the car; that when they reached a point almost opposite Truman Henson, the front end of the Coupe turned and headed toward appellant; that if Box had continued to drive on and appellant had not moved, the car would have run over him; that after the front end of the car got out of the road it stopped, and he (affiant) saw Box reach over toward the switch and the car stopped running; that Box reached back of the seat with his right hand and when he did so, Henson raised a shotgun to his shoulder and fired; that after Henson had fired the second shot he (affiant) ran back into the woods; that he saw Box open the left door of the car and get out; that the mother and daughter got out of the car on the right side; that the daughter and father went on down the road while Mrs. Box walked in front of Henson’s house and conversed with appellant for a few minutes; that this was all he (affiant) knew.

The facts set forth in the affidavit which was attached to the motion are in accord with the testimony of appellant and his wife, and are slightly different from the testimony given by the State’s witnesses. The State’s evidence is to the effect that when appellant raised his gun to shoot, Alex Box threw up his arm back of the shoulders of his wife and daughter and shoved their heads under the dashboard. Appellant’s theory, supported by the testimony of himself and his wife, was that Box reached back of the seat before he raised his gun to shoot. It occurs to us that the newly discovered evidence would have corroborated the testimony of appellant and his wife, was cumulative of their testimony, and would therefore not be legal grounds for a new trial. A similar question to the one here presented was before this court in the case of Turner v. State, 37 Tex. Cr. R. 451, 36 S. W. 87. In that case, as in the present, appellant’s defense was self-defense. The State’s evidence in that case showed that the accused made an unprovoked and unjustified assault upon Hilliard Brown. The evidence of the defendant’s witness was that Brown made an assault upon appellant with a knife, whereupon appellant drew his pistol. Subsequent to the trial appellant learned of two witnesses who claimed to have seen the difficulty and saw Brown draw his knife and cut at appellant before appellant drew his pistol. He set this up in his motion for a new trial. The court held that the testimony would have been cumulative. For other authorities, see Branch’s Ann. Tex. P. C., p. 130, Sec. 203; Harrolson v. State, 54 Tex. Cr. R. 452; Roberts v. State, 57 Tex. Cr. R. 199, 122 S. W. 388.

It seems to be the rule in this state that an application for a new trial based on newly discovered evidence is addressed to the sound discretion of the trial court, and unless an abuse of discretion is shown, this court will not reverse his conclusion on the subject. See Roberts v. State. 190 S. W. (2d) 116, and cases there cited. It is not reversible error to overrule a motion for a new trial based on newly discovered evidence unless, in the opinion of the court, it would likely produce a different result upon another trial. See Branch, supra, p. 128, sec. 201.

Bills of Exception Nos. 2 and 3 relate to the same subject matter and may be disposed of together. These bills show that appellant had filed a plea for a suspension of sentence in the event of his conviction. That he placed his general reputation as a law-abiding citizen in issue and proved by a number of witnesses that his reputation in that respect was good. The State undertook to controvert the same, and called the sheriff of the county, who testified that he knew appellant; that he was acquainted with appellant’s general reputation as a peaceable and law-abiding citizen and that it was bad. Thereupon cousel for appellant inquired of him whom he had heard say that appellant’s reputation was bad, to which the witness replied, “W. H. Bullock of Winnsboro, * * * so did Frank Weems * * * and Wesley Taylor.” Counsel then elicited from the witness the fact that Bullock lived some 25 miles from where appellant lived and that the others lived about 15 miles distant; that Bullock had been sheriff of the county and the other two were peace officers. The witness further testified that on the occasion of the appellant’s arrest he told the witness that if he were caught down there in the woods without a gun he would kill him. Appellant objected to the testimony relative to the threat. The court sustained the objection and instructed the jury not to consider it. It occurs to us that the court, by instructing the jury not to consider it, withdrew the evil effect thereof, if any.

Appellant also requested the court to withdraw from the jury all of the testimony of the sheriff relative to his general reputation, which the court declined to do, whereupon appellant duly excepted. His contention seems to be that the peace officers who discussed his reputation did not live in the same community with appellant and what they told the witness was hearsay. He cites us to the case of Guajardo et al v. State, 96 Tex. Cr. R. 230, 257 S. W. 247, as sustaining his contention. We have examined this case and believe it is distinguishable from the instant case on the facts. In that case, the witness did not know the defendants ; that he lived in another county, but made some investigation of their reputation by inquiring of the Sheriff and County Attorney of Brooks County; that all he had was their statements. It occurrs to us that what the Sheriff and County Attorney told him that they heard relative to appellant’s general reputation was hearsay, but in the instant case, the witness definitely stated that he knew appellant and knew his general reputation as a peaceable and law-abiding citizen to be bad. That made his testimony admissible on that issue. Thereupon appellant took the witness on cross-examination and elicited the facts complained of as being hearsay. He sought to impair the testimony of said witness by eliciting the same and then requesting that it be withdrawn by the court. It is our opinion that, under the circumstances disclosed by the bill, the court was correct in holding that the objection went more to the weight than to its admissibility.

By Bill of Exceptions No. 4 appellant complains of the testimony given by Alex Box to the effect that on the day in question, he went to Quitman to attend court as a State’s witness against appellant, who was charged with an assault to murder him (Box) ; that the case was set for trial on that day, Monday, February 12, 1946, to which appellant objected because it had not been shown that defendant knew anything about Box going to court, etc. This bill is qualified by the court, who certifies that the District Attorney had informed the court that Mrs. Box would testify that at the time of the shooting on February 12, 1946, the defendant stated to her, “I told you not to go to court today.” The record shows that she did testify that immediately after the shooting, she talked to appellant and he remarked to her, “I told you not to go to court today.” To which she replied, “You didn’t tell us anything; you sent a man who told us not to go to court, but we had to go.” Thereupon he remarked, “No, by God, you didn’t.” This clearly indicates that he knew that Alex Box had gone to Quitman to attend court as a witness. Appellant sought to account for his presence in the brush near the road with a shotgun with the statement that he was trying to kill a chicken hawk and was not lying in wait for Box. Consequently it was admissible on that issue. Of course, if appellant had no knowledge that Box had gone to court, then a most serious question would have been presented.

No error appearing from the record, the judgment of the trial court is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.