DAVIDSON, Judge.
—Appellant was convicted of manslaughter, his punishment being assessed at three years confinement in the penitentiary.
Two questions are presented, first, the insufficiency of the evidence to support the conviction; second, newly discovered testimony. We do not think there is any merit in the first proposition. These parties had been at enmity, each making threats against the other; both armed themselves the day of the killing. It is in evidence that the deceased made threats against the life of appellant, and also that appellant made threats against the life of deceased. This is the conclusion to be reached from the evidence, without stating it in full.
Within an hour of the killing, appellant walked into the saloon of Habine and was informed by Habine, his brother and others, that deceased had been in the saloon shortly before and had made threats against him; He borrowed a pistol from Habine and left. Shortly afterward he came upon deceased on the corner of a street. A conversation began by appellant stating to deceased he understood he had been looking for him. Deceased replied, “Yes, I understand you have been looking for me,” and struck appellant with his fist; they “clinched.” When pulled apart appellant had his pistol, snapped it once or twice,
and either the second or third time it was discharged, inflicting the fatal wound. The testimony is not altogether harmonious at what time deceased pulled his pistol or attempted to pull it. Appellant introduced evidence to the effect that the deceased was pulling or seeking to pull his pistol before he pulled his. When deceased fell he had his pistol in his hand, or if not it had just been taken from him by an officer. Evidently the State’s idea was, that the trouble arose between them on account of a prostitute with whom appellant had been living prior to the homicide, but had for a month or two not lived with her, but that deceased was keeping her as his mistress at time of difficulty. They were engaged to be married, and she was going to rectify her life by moving from Galveston to Houston and become, as she says, a better girl. This case borders closely upon mutual combat, under circumstances that meant a deadly conflict.
As to the newly discovered testimony, affidavits are appended to the motion, in substance, that deceased had hired an auto and chauffeur to carry him about the city in search of appellant. The chauffeur had been discharged shortly before the meeting. We do not think there is anything in this phase of the motion. Appellant was thoroughly informed of the fact that deceased was seeking him and had threatened liis life. Acting upon this information he armed himself and went to where the deceased was located. If the witness had been present at the tirtíe and introduced before the jury, this testimony would have been, admissible as intensifying the fact that deceased had been looking for appellant, but appellant fully knew that fact prior to the killing. This was in the nature of cumulative evidence, and a matter of no very material importance, as we understand this record. Appellant was informed and knew of the threats, and that deceased intended to kill him and was seeking him for that purpose.
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DAVIDSON, Judge.
—Appellant was convicted of manslaughter, his punishment being assessed at three years confinement in the penitentiary.
Two questions are presented, first, the insufficiency of the evidence to support the conviction; second, newly discovered testimony. We do not think there is any merit in the first proposition. These parties had been at enmity, each making threats against the other; both armed themselves the day of the killing. It is in evidence that the deceased made threats against the life of appellant, and also that appellant made threats against the life of deceased. This is the conclusion to be reached from the evidence, without stating it in full.
Within an hour of the killing, appellant walked into the saloon of Habine and was informed by Habine, his brother and others, that deceased had been in the saloon shortly before and had made threats against him; He borrowed a pistol from Habine and left. Shortly afterward he came upon deceased on the corner of a street. A conversation began by appellant stating to deceased he understood he had been looking for him. Deceased replied, “Yes, I understand you have been looking for me,” and struck appellant with his fist; they “clinched.” When pulled apart appellant had his pistol, snapped it once or twice,
and either the second or third time it was discharged, inflicting the fatal wound. The testimony is not altogether harmonious at what time deceased pulled his pistol or attempted to pull it. Appellant introduced evidence to the effect that the deceased was pulling or seeking to pull his pistol before he pulled his. When deceased fell he had his pistol in his hand, or if not it had just been taken from him by an officer. Evidently the State’s idea was, that the trouble arose between them on account of a prostitute with whom appellant had been living prior to the homicide, but had for a month or two not lived with her, but that deceased was keeping her as his mistress at time of difficulty. They were engaged to be married, and she was going to rectify her life by moving from Galveston to Houston and become, as she says, a better girl. This case borders closely upon mutual combat, under circumstances that meant a deadly conflict.
As to the newly discovered testimony, affidavits are appended to the motion, in substance, that deceased had hired an auto and chauffeur to carry him about the city in search of appellant. The chauffeur had been discharged shortly before the meeting. We do not think there is anything in this phase of the motion. Appellant was thoroughly informed of the fact that deceased was seeking him and had threatened liis life. Acting upon this information he armed himself and went to where the deceased was located. If the witness had been present at the tirtíe and introduced before the jury, this testimony would have been, admissible as intensifying the fact that deceased had been looking for appellant, but appellant fully knew that fact prior to the killing. This was in the nature of cumulative evidence, and a matter of no very material importance, as we understand this record. Appellant was informed and knew of the threats, and that deceased intended to kill him and was seeking him for that purpose.
The other phase of the motion was, in substance, that deceased had gone to a pawn-shop before driving in the auto and rented a pistol. This affidavit and the motion shows that deceased had rented this pistol from the pawn-shop for twenty days, paying ten dollars for it. It is ■claimed that this is newly discovered and material. It would have been admissible testimony, but it is far from clear from the record that appellant was in position to take advantage of that as newly discovered testimony. The witness by whom they expected to prove this was a witness and present at the trial and was not asked in reference to the matter. Qualifying the bill in this respect the court says: “It is cumulative of the testimony of other witnesses who testified upon the trial.” Ho witness, however, in the case testified to the fact that deceased had leased the pistol. From the witness Pearl Brooks, upon cross-examination, the defendant elicited the following: “Q. How then, Pearl, didn’t you, on the day of the killing, on that morning, furnish to Mr. Smith money to buy him a six-shooter? A. Ho, sir; I didn’t. Q. Didn’t you give him ten dollars ? A. Ho, sir. Q. Didn’t Mr. Smith buy a six-shooter on the morning of the killing, from a pawnshop in the City of Galveston? A. If he did, I don’t know about it;
I didn’t give him ten dollars, and as to Mr. Smith never paying me back the ten dollars, I didn’t give him the ten dollars to pay me back. He had money; he made thirty-five dollars that night and I got half of it.” By this witness threats- were proved by the defendant against the deceased. It will be noticed by this statement that defendant on cross-examination of the woman Pearl Brooks, who had been appellant’s former mistress, proved that she was then the mistress of deceased; that she did not let deceased have the ten dollars to buy a pistol or get one from the pawn-shop. He asked her particularly if she had not let him have the money to get it from the pawn-shop. From this appellant must have been aware of the fact that deceased got the pistol from the pawn-shop, or believed it, as he asked particularly in reference to that very matter. Ten dollars was the exact amount deceased paid the pawn-shop for the pistol. If he knew or believed that deceased had been hunting him over the town, ordinary diligence would have required him to inquire at the different pawn-shops whether or not deceased had gotten this pistol. There is no evidence connected with the motion for new trial or in the statement that he had gone to any pawn-shop to ascertain this fact, and yet he developed on the trial by cross-examination of the witness Pearl Brooks that he knew or believed the fact that deceased had gotten the pistol from the pawn-shop and had paid ten dollars for it. Hnder this statement we do not believe this case is brought within any of the rules which would require the court to grant a new trial. It is sometimes the case that justice may require granting a motion for new trial where the matters are not brought strictly within the rules in regard to newly discovered testimony, but we are of the opinion that this is not one of those cases. Appellant was apprised, if his examination of the witness Pearl Brooks means anything, of the fact that deceased had leased the pistol from some pawn-shop and had paid ten dollars for it, because he was inquiring of this witness if she had not furnished deceased the money. As soon as the trial was over and conviction had, he discovered this quickly, and from one of the witnesses who was used on the trial. How the fact that deceased had leased the pistol from the pawn-shop could have had but little bearing upon the real merits of the case. Appellant’s personal testimony is to the effect that he was afraid the deceased would kill him; that they had had previous difficulties. Taking the case all in all we do not believe this testimony comes within even any equitable rule that would require the court to grant a new trial or this court to reverse for failure to grant a new trial. This seems to be one of those cases where the two antagonists threatened each other, both apparently willing to enter into a deadly conflict, both armed for this purpose, with some intimation that appellant sought the deceased. We are of the opinion, therefore, the court did not err, and this judgment ought to be affirmed, and it is accordingly so ordered.
Affirmed.