Behrens v. State ( 1924 )

Appellant complains of the fact that the court considered in connection with the motion for new trial the evidence adduced upon the trial of this case as showing that he had not used due diligence in procuring testimony relied on as newly discovered. Appellant misapprehends the effect of the opinion in Collins v. State, 254 S.W. Rep., 808, wherein we said that:

"When the motion for new trial raises questions of fact, the trial judge has the privilege of determining whether they are true, and in such case the judge shall hear evidence, by affidavit or otherwise, and determine the issue. When on appeal it appears that in passing on the motion the trial judge relied upon evidence other than that furnished by the affidavits attached to the motion for new trial, and the State's contest thereof, this court cannot determine whether the issue of fact was correctly decided in the absence of a statement of facts or bill of exceptions embracing the evidence that was heard, and must therefore presume that the court's ruling upon the evidence before it was correct."

It must be patent that the court was only discussing the duty of this court to sustain the action of the trial court in passing upon a motion for new trial which by its recitals or surroundings showed to have been decided, upon evidence heard, by the trial court, which evidence was not preserved in any way. Manifestly the appellant might swear to motion for new trial based on the proposition there was not sufficient evidence before the court upon the main trial, to justify the jury's verdict, and might support this motion for new trial by the affidavits of any number of people to that effect. This would not deprive the trial judge upon the hearing of the motion for new trial, of the right to decide the case adversely to the contention of the sworn motion and of its supporting affidavits. To be sure, he would take into consideration the testimony that had been introduced before him upon the trial of the case itself.

It is true that the motion for new trial negatives knowledge on the part of appellant or his counsel, of the facts set forth in the affidavits of the witnesses relied on as newly discovered. This is only a part of the necessary allegations where newly discovered evidence is relied on. It is necessary that the motion set up and the proof support the proposition that the newly discovered testimony could not have been procured by the exercise of diligence. We again state that when the difficulty occurred within a very short distance of a house by the roadside and the record shows that no investigation has been made to find out if the inhabitants of said house know anything of the difficulty, and it is not shown that they were talked to by the defendant or anyone representing him, this would not appear to us to be diligence.

Appellant quotes from Sec. 87 of Mr. Branch's Annotated P. C. as rebutting our conclusion that the statement made by Samuel Wilkerson when he rode up to the house where Mr. Geisler and her daughter were, was not a part of the res gestae. The quotation from Mr. Branch's P. C. is as follows:

"If the statement of a third person were a part of a transaction and go to illustrate the feelings, motive and acts of the principal actors, proof of same is admissible as part of the res gestae."

The statement of the rule refutes the proposition of its application here. Samuel Wilkerson was with his father at the time the State said the latter was assaulted by appellant and his companion. After the row was over Samuel rode down to the house where Mrs. Geisler and her daughter were and made statements there, not as to what had transpired at the scene of the difficulty but of the fact that appellant was fooling around their house the night before and his father threw some rocks at him. This was clearly a narration of some past event and could under no view be res gestae.

We have examined the other propositions advanced in the motion for rehearing and being unable to agree with any of them, same will be overruled.

Overruled.