45 S.W. 495


BLUITT
v.
STATE.


Court of Criminal Appeals of Texas.


April 20, 1898.

Appeal from district court, Freestone county; L. B. Cobb, Judge.

Leo Bluitt was convicted of assault with intent to murder, and he appeals. 
Affirmed.

W. W. Walling and Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of assault with intent to murder, and his punishment 
assessed at two years' confinement in the penitentiary; hence this appeal.

There is no bill of exceptions in the record. Appellant made a motion for a 
new trial, on the ground of newly-discovered evidence, which was overruled. 
The alleged newly-discovered evidence consisted in the testimony of Jeff 
Packer, Sam Beaver, and J. A. Bonner, by whom it was proposed to contradict 
the state's witness Jake Dunbar. The witness Dunbar testified for the state 
that he passed along the place where the shooting is said to have occurred a 
short time before; that it was not then good dark, and he saw defendant with 
his gun, along the road, about 200 yards from where the shooting occurred; 
that he rode on about a mile, when he heard the report of a gun. This testimony 
was used by the state in order to identify the appellant as the party who did 
the shooting. It was proposed to show by the newly-discovered evidence that 
said witness Dunbar passed along by the place of the alleged assault earlier 
than he stated, and some of the witnesses state about 40 minutes before sundown. 
It occurs to us that this testimony, by the use of reasonable diligence, might 
have been discovered. But, more than that, we fail to perceive its materiality. 
The evident purpose was to impeach the witness Dunbar, and new trials are not 
ordinarily granted for this purpose. It would make no difference if the state's 
witness Dunbar was mistaken as to the time when he may have seen defendant near 
the place where the shooting subsequently occurred. He may have been loitering 
in that place for a considerable length of time before the shooting, as he 
could not know when the prosecutor, Wash Tarlton, would return from the town of 
Winkler, where he had seen him earlier in the day. There is nothing in this 
newly-discovered evidence. We have examined the record carefully, and it amply 
supports the verdict, and the judgment is affirmed.