Burkhart v. State , 127 Tex. Crim. 1 ( 1934 )

We have carefully gone over appellant's motion for rehearing. The case is most unusual. The killing of a lad by a man of mature years, by means of kicking and stomping him with his feet at or before daylight on a public road, in the presence of another boy, — would seem to justify the effort of the State in all those matters complained of in bills of exception 4 to 10, to show the condition of appellant's mind and the character of his acts during the night and day preceding and following that of the homicide. Malice may be shown by evidence establishing a reckless disregard of human life, a heart regardless of social duty and fatally bent on mischief, — the existence of which is inferred from acts done or words spoken, this being the very definition given the term malice. Martinez v. State, 30 Texas App., 129; Jackson v. State, 31 Tex. Crim. 552; Harrell v. State, 39 Tex.Crim. Rep.. As we view this record, those things, — complaint of which is made in said bills, — were put before the jury so that having opportunity to consider his condition, acts and words, they might better pass on the grave question as to whether he was actuated by malice aforethought or not.

We can not bring ourselves to agreement with appellant that this verdict is contrary to law and reason. That appellant made the assault was testified to by witness Barchanger who was present; by Schiller who said that the next morning after said assault appellant told witness he had had a round the night before with some school boys, and stomped the James boy (deceased) to learn him some sense; by Rosenthal to whom appellant made the statement the next day after the alleged assault, that the night before he had kicked two small boys' behinds, and later said to Rosenthal that he stomped them; by Ponton who testified that appellant told him the day following the alleged assault, that he shined his shoes on a couple of smart Thorndale boys; by Felfe who heard appellant say on the same day that he kicked two smart alecs and stomped them on the road the night before. Other witnesses testified to other incriminating facts. Reputable doctors testified that the fact that no external bruises were observed upon the boy's body was not conclusive, — that one might be injured internally in the manner claimed without external bruises. The credibility of the witnesses is always for the jury.

Appellant also insists that we erred in holding that his showing of diligence to secure the testimony of witness Perry was not sufficient, — Perry having made an affidavit which was appended to appellant's motion for new trial as supporting the claim of newly discovered evidence. While we think there is no showing of diligence to secure Perry's testimony, we further observe that nothing in his said affidavit or his oral testimony given on the hearing of the motion for new trial, seems of sufficient materiality to lead this court to conclude that the presence of this testimony on another trial would probably produce a different result; nor to relieve such claimed new evidence of its apparent character of being merely impeaching. Nothing therein shed light on how deceased received his injury, or denied or contradicted the fact that deceased was hurt as Barchanger claimed. It will be noted that on the trial and at all times Barchanger claimed that when he woke up out on the road at the scene of the alleged homicide, in the edge of the little town of Thorndale, — his left hip or leg was hurting him, and that appellant's car was standing near. Barchanger made no statement in testimony as to what hurt his hip or leg. Perry's affidavit that Barchanger told him the morning after the alleged assault that his leg was hurting and that an auto had run over him, and that he lacked a little of getting off the road, at the place where he and deceased lay down, — in no sort of way controverts the fact that after appellant came on the two boys lying in the edge of the road, he stopped his car and assaulted deceased. Barchanger may have believed that his own hurt hip came from being struck by appellant's car. The granting of a new trial for new evidence is a matter largely left to the discretion of the trial court. Lewis v. State, 82 Tex.Crim. Rep.; Gordon v. State,88 Tex. Crim. 17; Johnson v. State, 91 Tex.Crim. Rep.; Bank v. State, 95 Tex.Crim. Rep.. If the materiality of newly discovered evidence is doubtful, the action of the trial court in refusing the motion for new trial will not be reviewed. Ross v. State, 98 Tex.Crim. Rep.; Inman v. State, 100 Tex.Crim. Rep.; O'Hara v. State,57 Tex. Crim. 577. We are of opinion that nothing indicates an abuse of the discretion of the trial court in refusing to grant appellant a new trial.

Not being able to agree with any of the reasons advanced in the motion for rehearing, same will be overruled.

Overruled.