The first question presented in this case for our determination is the sufficiency of the indictment. The charging part of the indictment is as follows: “that one J. R. Burns and Doctor Goodnight, whose given name is to the grand jurors unknown, late of said county, on the 16th day of May, A. D. eighteen hundred and seventy-eight, with force and arms in the county and State aforesaid, did then and there, in and upon the person of one E. F. Davidson, unlawfully, wilfully and
After conviction, the defendant moved in arrest of judgment upon the ground that the indictment “does not allege that the said Davidson was induced by means of the assault and violence against him, alleged to have been committed by the said Goodnight and Burns, to give up to them the property alleged to have been taken, or that said, property was obtained from the said Davidson by the said Goodnight and Burns, by reason of, or by means of said alleged violence and said assault.” The motion in arrest of judgment was overruled, and this action of the court is now assigned as error.
The indictment pursues substantially the common law precedent of an indictment for robbery, and would, we think, be a good indictment at common law. (Wharton’s Precedents, 410; 2 Bishop’s Cr. Proc. 1002.) This court has decided that the common law form of indictment for this offense will suffice. (Reardon v. State, 4 Texas Ct. App. 602; Bell v. State, 1 Texas Ct. App. 598.)
Numerous objections have been ingeniously presented to the charge of the court, and argued with much ability by counsel for defendant. We have, in the light of this argument, carefully scrutinized the charge of the court, in connection with the evidence in the case, and we cannot concur with counsel in their objections. We think the charge of the court, taken as a whole, is the correct law of the case, and as favorable to the defendant as the facts would warrant. It is plain, direct and easily comprehended, and not calculated to be misunderstood, or to mislead.
• The defendant assigns as error the judgment of the court overruling his motion for a new trial. One ground of this motion is that he was required by the ruling of the court to accept or reject a disqualified juror. One Carmichael was presented as a juror, and he was challenged for cause by defendant,-—the cause of challenge being that said Carmichael was a deputy sheriff. The court overruled the challenge, and the defendant then
Another ground for new trial which is strenuously insisted upon by defendant is that since the trial the defendant has discovered material evidence in his defense, which he could not by any reasonable diligence have before discovered. The same rules govern motions for new trial in criminal as in civil cases, where newly-discovered evidence is the ground of the motion. (Code Crim. Proc. 777; Bell v. State, 1 Texas Ct. App. 598.) Applications for new trial upon this ground will be scrutinized with much strictness. They are addressed much to the discretion of the court, and where the court has refused such an application, the appellate court will not reverse, unless it shall appear that the court below has abused its discretion, and that thereby injustice may have been done the' party. (Mitchell v. Bass, 26 Texas, 372.) It is a well settled rule, that to entitle a party to a new trial upon the ground of newly-discovered evidence, the evidence must be such as would likely change the result. (Gaines v. State, 41 Texas, 334; West v. State, 2 Texas Ct. App. 210; Johnson v. State, Id. 456; Higginbotham v. State, 3 Texas Ct. App. 447; Blake v. State, 3 Texas Ct. App. 581; Haselmeyer v. State, 6 Texas Ct. App. 21; Brown v. State, 6 Texas Ct. App. 286; Templeton v. State, 5 Texas Ct. App. 398; Hutchinson v. State, 6 Texas Ct. App. 468.) The court below evidently did not think that the newly-discovered evidence was of a material character, or such as would be likely to change the result upon
We have discovered no material error in the proceedings in the court below, and the judgment of conviction is affirmed.
Affirmed.