Robinson v. State , 135 Tex. Crim. 82 ( 1938 )

ON MOTION FOR REHEARING.

Graves, Judge.

Appellant complains in her motion that because of the fact that the main State witness Robert Waddy’s testimony was contradicted by many witnesses who placed Waddy in such a position that he could not have seen nor heard anything that took place at the scene of the killing, such case should be reversed because of such witness being thus impeached. The jury were the judges of the credibility of the witnesses and seemed to have given credence to Waddy’s testimony, and we do not feel like usurping their function herein.

Appellant also urges that her motion for a new trial should have been granted in order to allow her the benefit of certain newly discovered testimony of the witness Riley Davis, who would testify that in a conversation with the deceased about three weeks prior to this homicide, the deceased said: “I am afraid I am going to have to kill her [appellant] before Christmas.” We note from the record that appellant and her husband, the deceased, had continuously had many violent quarrels, and other witnesses had testified to threats and struggles and difficulties that had marred their married life, and this further threat would only have been cumulative testimony at best. We do not think its introduction would have materially affected the verdict, nor do we think the learned trial judge abused his discretion in overruling the motion for a new trial. See Branch’s P. C., p. 124, Section 192.

The motion for a rehearing will be overruled.