Herrington v. State

The offense is assault with intent to murder; the punishment, confinement in the penitentiary for one year.

Jim Wood, the injured party, and appellant were not on good terms. On the occasion of the alleged assault they met in the town of Quitaque. According to the version of the State, Wood said to appellant: "Put your gun down. I don't want any trouble. I just want to tell you how low down and dirty you are and then you can go." Wood's father, who was present, seized a tire tool and told appellant if he pulled a pistol he would knock his head off. As appellant was leaving the scene of the difficulty Wood said that if someone would take appellant's pistol off of him he would whip him. According to Wood and other witnesses for the State, appellant walked around the corner of a building but returned in a few moments with a pistol in his hand. Wood ducked behind a bystander as appellant approached him. Nevertheless appellant shot him in the region of the heart. After he fell appellant shot him again. Wood was making no demonstration at the time appellant shot him.

The testimony of appellant's witnesses raised the issue of self-defense. According to their version, the injured party had cursed appellant and was preparing to attack him with a tire tool when appellant shot him.

Appellant contends that the evidence is insufficient to support the conviction, his position being that the uncontroverted proof shows that he acted in self-defense. It has been observed that the testimony of the State showed that appellant left the scene of the difficulty but shortly returned and shot the injured party at a time when he was making no effort to assault the appellant. On the contrary, appellant's witnesses gave testimony which, if believed, would have warranted the conclusion that appellant acted in self-defense. The jury had the right to accept the State's version.

No order extending the time for filing bills of exception was entered. Court adjourned January 26, 1935. Appellant had thirty days after the day of adjournment in which to file his bills of exception. Art 760, C. C. P. Said bills were not filed until April 25, 1935. Manifestly they were filed too late and the objection on the part of the State to their consideration must be sustained.

Appellant contends that the charge on self-defense was inadequate in view of the fact that the court failed to instruct the jury that is was incumbent upon them to view the situation from the standpoint of appellant at the time of the alleged assault. Appellant's exception to the charge was as follows: "Defendant specially excepts to paragraph No. 12 for the reason that the meaning is not clear." The opinion is expressed that said exception was not sufficiently specific. See Art. 658, C. C. P.

It appears that Jim Wood, the injured party, had been convicted of a felony and awarded a suspended sentence. Appellant's contention that the witness was disqualified cannot be sustained. The judgment of conviction had not become final. See Espinoza v. State, 165 S.W. 208. In any event if the conviction occurred subsequent to the amendment of Art. 708, C. C. P., in 1926, the witness would have been competent whether or not the conviction was final. See Fitzgerald v. State,39 S.W.2d 47.

In his motion for a new trial appellant alleged newly discovered evidence to the effect that the injured party had admitted to certain witnesses after the conclusion of the trial that he had not testified truthfully. Other witnesses for the State gave testimony on the trial corroborating the version of the injured party. The alleged newly discovered testimony would have been admissible solely for impeachment purposes. It is the general rule that a new trial will not be granted where the newly discovered evidence could only be used to discredit or impeach the testimony of a witness who had testified on the trial of the case. Bracken v. State, 9 S.W.2d 356.

Our examination of the record leads us to the conclusion that reversible error is not presented.

The judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.