Parrott v. State , 276 S.W. 279 ( 1925 )

On Motion for Rehearing.

LATTIMORE, ,1.

The motion is based on» two grounds — one that we erred in what we said concerning the alleged-newly discovered evidence; and the other being based on the-insufficiency of the testimony. The record' discloses that the shooting by appellant,, which is the basis of the prosecution, took place when there were a number of men in-the immediate vicinity. The alleged newly discovered witness was the nearest man to-the parties, and was well-known to appellant. We cannot ingraft upon the practice in this state the proposition that, because a. man sees fit to defend himself, he shall not be held to the ordinary rule of diligence im his efforts to procure the presence of witnesses. No subpoena was issued for the alleged newly discovered witness, and apparently no effort made to obtain his-testimony,, notwithstanding it is evident that its materiality must have been known to appellant.

Nor are we able to agree with the contention made that the evidence does not support the judgment. The trial court told the jury that, in order to convict, they must not only believe that appellant made an assault upon Easom Wood, but that he had the specific intent at the time of making such assault, if he did, to kill said Wood. The proof on behalf of the state showed that, after Wood had made some statements which appellant construed as insulting to him, he went away and procured a shotgun in which was a shell loaded with No. 4 shot, and fired it point blank at the injured party, at a distance some 60 or 70 feet.

The court having appropriately charged the jury, and they having concluded under the charge that this evinced a present determination on the part of appellant to kill, we are not able to say that their judgment is-not supported by the testimony, and the motion for rehearing will be overruled.