Lawson v. State

DAVIDSON, Judge. Upon an indictment charging assault with intent to murder with malice, appellant was convicted of assault with intent to murder without malice, and his punishment assessed at confinement in the penitentiary for two years. In the light of the record before us, a detailed statement of the facts is not deemed called for. It is sufficient to say that the testimony of the injured party shows that the appellant, without justification or excuse, shot him twice with a .45 caliber pistol. Appellant claimed that he shot in self-defense to prevent the injured party from robbing him. The sole question presented upon appeal relates to the refusal of the trial court to grant a new trial upon the testimony of two witnesses claimed to be newly discovered, by whom it could be proven that the injured party made a statement to them contradictory of his testimony upon the trial of the case and supporting appellant’s defensive theory. The testimony claimed to be newly discovered was impeaching only. Testimony of such character is not ordinarily ground for new trial. Article 753, Note 33, Vernon’s C. C. P.; Cox v. State, 140 Texas Crim. Rep. 442, 145 S. W. (2d) 589; Herring — 202 — ton v. State, 129 Tex. Cr. R. 567, 89 S. W. (2d) 991; Frederickson v. State, 131 Tex. Cr. R. 82, 97 S. W. (2d) 206. In ■ the sentence the trial court failed to take cognizance of the indeterminate sentence law and sentenced appellant to two years’ confinement in the state penitentiary. The minimum punishment fixed to the crime of assault with intent to murder without malice is confinement in the penitentiary for one year. It becomes our duty to reform the judgment and sentence so as to comply with the indeterminate sentence law. Accordingly, the sentence is reformed so as to read not less than one nor more than two years’ confinement in the state penitentiary. As so reformed, the judgment of the trial court is affirmed. Opinion approved by the Court.