Harcrow v. State

Appellant insists we were in error in holding that the testimony of a physician to the effect that the injured party took pneumonia as a result of the wound inflicted by appellant and was seriously ill and expected to die did not call for a reversal. We have again carefully examined the evidence and are unable to agree with appellant's contention that the case should be reversed on this account. Assuming that the testimony should not have been admitted it then becomes a question as to whether under all the facts in the case it was of that character which likely resulted in injury to appellant. We have not been able to reach the conclusion that the present instance reveals such a condition. The testimony of several physicians was directly to the point that the knife wounds inflicted were of a serious character and from which death might result. The jury was not left in doubt as to appellant's intent in inflicting the injury. It is in evidence from several parties who were apparently on friendly terms with him that he opened his knife in advance and placed it in his pocket, saying at the time if the injured party said anything further he intended to kill him, and after inflicting the injury said he had done exactly what he intended to do. When a friend expressed some anxiety over the result of the injury saying he believed appellant had killed Blount, appellant replied that was exactly what he had intended to do. We do not think the statement of the physician relative to the pneumonia and the necessity for an operation resulting in the removal of a rib in order to drain pus from the pleural cavity was of such a character as to call for a reversal.

We regret that we are unable to consider the statement of the learned trial judge which is attached to the motion for rehearing, relative to what matters were and what were not considered at the time the motion for new trial was passed upon. While not questioning the correctness of such statement, of necessity we must be controlled by the recitals in the record as revealed from the transcript and not by an ex parte statement subsequently made and attached to some paper filed in this court.

In this case and others referred to in the original opinion we have undertaken to lay down the rule which we conceive to be fair both to the State and appellant, and in conformity with the statute, relative to when affidavits attached to motions for new trials setting up newly discovered evidence or other matters de hors the record, should and should not be considered by this court in the absence of a bill of exception or statement of facts properly filed during the term expressly showing the affidavits were offered in evidence and were considered by the trial court in passing on the motion. In the motion for rehearing stress is laid upon the language of the opinion in Cade v. State,96 Tex. Crim. 523, 258 S.W. 486, where reference is made to "oral evidence" having been heard upon the motion. In that case the record affirmatively showed that oral evidence had been introduced upon hearing the motion and the opinion was written with that fact in view, but it was not intended to limit the rule there announced to cases where "oral" evidence alone was shown to have been heard. Since the original opinion in this case was announced the principle now under discussion was reaffirmed in Redford v. State, (No. 7847, opinion May 14th, 1924), citing the original opinion in this case and Cade v. State, (supra).

The motion for rehearing is overruled.

Overruled.