Anderson v. State , 93 Tex. Crim. 634 ( 1923 )

Conviction is for assault with intent to murder; punishment fixed at confinement in the penitentiary for a period of five years.

Appellant struck Tom Daniels with an axe. This occurred at the home of Ora Neil. A dance was in progress. The parties, as well as the witnesses, were negroes.

Tom Daniels testified that while he was standing upon the gallery talking to Katie Austin, the appellant, without provocation, struck him with an axe. Daniels said that he was unarmed, and made no threat or demonstration.

Katie Austin, summoned by the State but used by the appellant, testified that she saw the encounter; that Daniels pointed his pistol at the appellant and told him not to move or he would kill him; that appellant was standing against the wall and seized an axe and struck Daniels with it. This was the extent of her testimony.

In the motion for new trial, it was shown by the affidavits of the appellant and his counsel that they learned after the conviction that Katie Austin knew additional facts favorable to the appellant and that Sarah Daniels could also give material testimony in his behalf. In these affidavits it was shown that Katie Austin at the trial disclaimed knowing any facts save those to which she gave testimony, and that Sarah Daniels disclaimed knowing any facts at all favorable to the appellant; that efforts were made to ascertain from her what she knew about the case, she being in attendance under process issued on behalf of the State; that she stated in terms that she was in the house at the time of the fight and had no knowledge upon the subject. Because of these statements, she was not used as a witness. After the trial, Sarah Daniels revealed to the man for whom she was working that she knew additional facts, but that she was afraid at the time of the trial to reveal them. This knowledge was imparted to appellant's counsel, and acting upon it, he obtained from both Sarah Daniels and Katie Austin affidavits which were before the court upon the hearing of the motion for new trial. The affidavit of Sarah Daniels, in addition to negativing any disclosure of her knowledge prior to the conviction, stated that she had gone to the dance in company with Tom Daniels, Raymond Salty and Katie Austin; that Daniels' pistol was carried by Katie Austin in her coat-pocket; that after arriving at the place where the dance took place and after Daniels saw the appellant there, he said to Sarah Daniels that he wanted his pistol; that she volunteered to go to Katie Austin and get the pistol; that she did so, intending to put it in the automobile; that while she was in the act of doing so, Tom Daniels caught her and took the pistol away from her. He then went to the place where he received the injury.

Katie Austin in her affidavit verified the truth of the statement made by Sarah Daniels to the effect that she had the pistol and that Sarah Daniels came for it, stating that she intended to hide it. She described the pistol and said that it belonged to Daniels and that it was the one he was using at the time the appellant struck him.

The State filed a writing combatting the legal sufficiency of the motion for new trial, but not denying that the witness would give the testimony imputed to her in the motion for a new trial.

The verdict of the jury finding the appellant guilty and assessing the penalty of five years when the minimum allowed by law was two years, reflects the rejection by the jury of appellant's theory of self-defense. The verdict rests upon the testimony of the injured party and another witness that Daniels was not armed. Katie Austin testified that he was armed, but the State witness Sarah Daniels resisted the efforts of the appellant's counsel to learn the facts within her knowledge. In fact, she denied the knowledge of any material facts. This is made evident by the uncontroverted affidavits of the appellant and his counsel appended to the motion for new trial as well as by her affidavit. We understand that the State does not controvert its truth but insists that it would not bring about a different result. If believed, it certainly strengthened the appellant's defense in that it showed that Daniels, the injured party, took a pistol with him to the dance and immediately before meeting the appellant, got possession of it from the witness Sarah Daniels. This while discrediting the evidence of Tom Daniels, was not wholly cumulative or impeaching. Beard v. State, 55 Tex.Crim. Rep.; Dunn v. State, 85 Tex. Crim. 299.

We believe that, under the facts of the case, the evidence is newly discovered within the meaning of Article 837, subdivision 6, Code of Crim. Procedure, and that the appellant has brought himself within the rule of diligence applicable to that article. Henson v. State, 74 Tex.Crim. Rep., (on motion for rehearing); Gainer v. State, 89 Tex.Crim. Rep.; Cottrell v. State, 91 Tex. Crim. 131, 237 S.W. Rep., 928; Mireles v. State, 83 Tex. Crim. 608, 204 S.W. Rep., 861; Nothaf v. State, 91 Tex. Crim. 619, 239 S.W. Rep., 215. On the materiality of the testimony, see Russell v. State, 92 Tex.Crim. Rep., 242 S.W. Rep., 217.

The motion for new trial should have been granted.

The judgment is reversed and the cause remanded.

Reversed and remanded.

ON REHEARING March 24, 1923.