169 S.W. 679
CYRUS 
v. 
STATE.
(No. 3198.)
Court of Criminal Appeals of Texas.
June 26, 1914.
Rehearing Denied October 14, 1914.
        Appeal from District Court, Freestone County; H. B. Daviss, Judge.
        Andrew Cyrus was convicted of assault to murder, and he appeals. Affirmed.
        W. J. Bryant, of Wortham, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
        HARPER, J.
        Appellant was convicted of assault to murder, and his punishment assessed at six years confinement 
in the state penitentiary.
        The state's evidence would show: That appellant and his wife were visiting at the residence of her 
mother, Roxy Gaines. That Roxy Gaines and her daughter, appellant's wife, desired to go and see a 
kinsman, May Eliza Bonner, who was sick, and appellant objected to his wife going. Words ensued, when 
the woman learned appellant was armed with a pistol, and Roxy Gaines asked some of those present to go 
after Lee Lamb. They did not go, and Roxy Gaines went in the house and got a gun, but, finding it had no 
loads in it, laid it down on the gallery. As she did so appellant began to shoot at her and killed her. He 
then turned and shot at his wife, who fled. Appellant pursued her, and when he caught her he shot her in 
the neck, and as she fell he ran off.
        Appellant's contention is that he and his wife had started to leave Roxy Gaines' house to go home, 
when Roxy told his wife (her daughter) she need not go; that from this words ensued, when Roxy rushed 
in the house, got a gun, and shot at him, knocking his hat off; that he then shot her, and after he shot 
Roxy, his wife and Roxy's son grabbed him, and in the scuffle the pistol went off two or three times, and if 
he shot his wife it was accidental, and he did not know he had done so until the next day. This is a 
sufficient synopsis of the testimony to discuss the various bills presented in the record.
        In the first bill it is shown that, while Louise Cyrus was testifying for the state on cross-examination, 
appellant asked her, "Did you send to Andrew Cyrus (appellant) for some clothes for yourself and baby?" 
which question was objected to by the state, and the objection sustained by the court. The bill and the 
qualification of the court show that
Page 680
if she sent to appellant for any clothes it was many months after the homicide, and after the alleged 
assault on Louise. Under such circumstances the bill presents no error, as it would shed no light on the 
transaction for which he was on trial.
        There are several bills in the record in which it is shown that appellant directly and indirectly sought 
to introduce in evidence what he told Deputy Sheriff Wright and Constable Crouch about how the difficulty 
arose. There is no suggestion that such conversation was res gestę of the transaction; in fact, the record 
shows affirmatively it was not, and under such circumstances his self-serving declarations were properly 
excluded by the court, as well as the reply of defendant on the day after the killing, when Deputy Sheriff 
Wright told him about his shooting his wife. As stated by the court in approving these bills, appellant had 
had many hours for reflection, and ample opportunity to plan and conceive these self-serving declarations, 
and under such circumstances there was no error in the ruling of the court. The fact that he had been 
warned that what he said might be used against him would not render such statement admissible in his 
behalf when the state had not elicited nor sought to elicit any part of such statements. Walker v. State, 13 
Tex. App. 618, 44 Am. Rep. 716, note; Wharton's Crim. Law (10th Ed.) § 1425.
        Randolph Murray was a witness for the defendant, and had testified to material facts in his behalf, 
had denied that appellant ran his wife around the house, and there shot her, and had testified to facts 
supporting appellant's contention that the shooting of his wife was accidental. Under such circumstances it 
was permissible for the state on cross-examination to ask if he had not on the day of the shooting told Lee 
Lamb and George Ferrell "that appellant chased his wife around the house, shot at her, and ran and 
jumped the fence, and then turned and shot again," and, when he denied having so stated, it was also 
permissible for Lee Lamb and George Ferrell to testify that Randolph Murray had so told them. It is always 
permissible, as tending to impeach a witness, either for the state or defendant, to show that they had 
made different statements from what they testified on the trial on a material matter. Campos v. State, 50 
Tex. Cr. R. 292, 97 S. W. 100, and cases cited in section 871, Branch's Crim. Law.
        The alleged newly discovered testimony of Ira B. Smith would not tend to discredit the testimony of 
Horace Womack. He does not claim to have been with Womack at the time the shooting took place, but 
says in the affidavit he (Smith) was in Lee Lamb's house, and therefore he could not and does not claim to 
know where Womack was at that time. The fact that Womack did not tell him what he saw of the 
shooting, when he saw him after the shooting, would in no way tend to discredit Womack. And neither is 
the testimony of Dr. Milner contradictory of any testimony had on the trial, but such testimony would 
show that appellant's wife was shot on that Sunday, as she says she was, and would tend strongly to 
contradict the testimony of the defendant that the shooting was accidental, instead of supporting his 
theory of the case. The doctor says he was called to see the woman, and she was shot in the side of the 
neck 1½ or 2 inches from the median line on the center of side of neck; that it struck a bone, and came 
out in the back of the neck and a little to one side of the center of the neck. Louise Cyrus testified that 
appellant ran her, and "caught her by the collar, and put the pistol down my neck and fired," and she fell. 
There would be contradiction in this testimony, and while some of the witnesses may have used the 
expression that appellant shot his wife in the back of the neck, when the ball is shown to have entered at 
least 1½ inches from the center of the side of the neck, this would not be conflicting. Many, in describing 
a wound, would thus speak of it, when it was that far to the rear. The testimony of the doctor would add 
no strength to the testimony of the defendant, nor detract any from the testimony offered by the state, 
but, on the other hand, would tend to strengthen the state's testimony, and the court did not err in 
refusing to grant a new trial on account of this alleged newly discovered testimony.
        In the motion for new trial it is alleged that this case was called out of its regular order. If so, no bill 
of exceptions was reserved to such action; therefore it is not presented in a way we can review it. In 
overruling the motion for a new trial, the court appends a statement as to this matter, and shows 
conclusively it was not called out of its regular order.
        Finding no error in the record, the judgment is affirmed.