author: RUSSELL, Judge. RUSSELL, Judge.

text:
    Alan KING and Rickey King, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Oct. 27, 1976.
    Rehearing Denied Dec. 16, 1976.
    Certiorari Denied by Supreme Court March 14, 1977.
    Bernard K. Smith, McMinnville, for appellants.
    R. A. Ashley, Jr., Atty. Gen., Donald S. Caulkins, Asst. Atty. Gen., Nashville, Charles M. Layne, Asst. Dist. Atty. Gen., Manchester, for appellee.
   OPINION

RUSSELL, Judge.

Alan King and Rickey King appeal their convictions in the Circuit Court of Van Bu-rén County.

The threshold problem is that it is nowhere found or specified what they are convicted of. They were jointly charged by indictment with larceny, receiving stolen property and concealing stolen property, the charges being contained in three distinct counts. The property involved was a truck worth substantially more than $100.00, so that the range of possible punishment was three to ten years on each count.

The learned trial judge charged the jury:

“And, in the event you should find these defendants guilty of either the first or the second or the third count of the indictment, it is not necessary that you specify in your verdict the count upon which you so find the defendants’ guilt.
“In a case such as this, the State is not required to elect upon which count a conviction is sought. And, for this reason, you may return a verdict that you find the defendants guilty or not guilty as the proof may warrant under these instructions considered as a whole in the light of all the evidence that has been admitted to your consideration on trial.”

Later in the charge, in dealing with the form that a guilty verdict would take, the judge said to report “guilty as charged”.

The jury first reported a verdict of simply “guilty” and fixed one to three years. This verdict was refused, and they were reinstructed as to the range of punishment. The jury subsequently returned verdicts of “guilty”, and nothing more, as to each defendant, and set three to five years as the punishment for each. Even during an individual polling of the jury nothing more than “guilty” was ever reported. It is true that the trial judge, on one occasion as to each verdict, did articulate it “guilty as charged”. The trial judge stated, in pronouncing sentence: “It is the judgment of this Court, based upon the verdict of the jury finding you guilty as charged in the indictment, that you are sentenced * The technical record contains an entry labeled “Felony Judgement”, which recites that the indictment charged “larceny, receiving and concealing”; that the jury found each appellant guilty; and:

“It is, therefore, ORDERED and ADJUDGED by this Court according to the findings of the jury aforesaid that the defendant is guilty as charged, and for his said offense will be confined in the penitentiary of the State of Tennessee for not less than 3 years, nor more than 5 years”.

The only place in this record which attempts to reflect and record what crime the appellants were convicted of is the notation on the cover of the transcript of the technical record, which shows:

“Defendants found guilty of larceny, receiving and concealing and sentenced to not less than 3 years nor more than 5 years in State penitentiary”.

The fault with all of this is that larceny, receiving stolen property and concealing stolen property are separate and distinct offenses. Our Supreme Court held, in Jones v. State, 219 Tenn. 228, 409 S.W.2d 169 (1966), that receiving stolen property and concealing stolen property were distinct offenses, and that the venue for the two offenses was not necessarily the same. The same court held, in Deerfield v. State, 220 Tenn. 546, 420 S.W.2d 649 (1967), that one who was acquitted of larceny but convicted of the combined charge of receiving and concealing stolen property could not be held guilty of receiving when all of the proof was that he was the thief, but could be tried for and possibly convicted of the distinct offense of concealing stolen property.

The facts of the instant case have to do with the alleged theft of a truck. There is direct evidence that Alan King stole the truck, and circumstantial evidence that Rickey King drove him to the scene and followed him away. The record does not disclose that the truck was ever found. There is no proof that it was received by either of these appellants; but, since the truck apparently has never been found, and these two appellants were connected to its disappearance, there is that much evidence that they concealed or aided in concealing it.

It is obvious that the judgments against appellants are incomplete and too uncertain to be valid. Our Supreme Court, in Swanner v. State, 187 Tenn. 358, 215 S.W.2d 784 (1948), held, in a prosecution for assault with the intent to commit murder in the first degree, that a verdict, “we find the defendant guilty and fix his punishment at one year in the State Penitentiary”, carried into the judgment on which sentence was pronounced and wherein also no offense was specified, was void for uncertainty, because the sentence fit more than one offense (assault to commit second degree murder and assault to commit voluntary manslaughter) and the jury never convicted the defendant of any specific offense.

The precise question that we are dealing with is not assigned as error, although it was set out in the motions for a new trial. In briefing another point, however, the State cites authority for the proposition that a general verdict is proper and will be applied to any good count in a multi-count indictment. The case of Mendolia v. State, 192 Tenn. 656, 241 S.W.2d 606 (1951), is somewhat supportive of upholding the general verdicts in this case, but two factors distinguish it from the case at bar. In Mendolia one defendant, charged in. separate counts with being an accessory before the fact and an accessory after the fact, was found simply “guilty as charged”. However, the sentence set was compatible only with guilt as an accessory before the fact, and a judgment of conviction of accessory before the fact was in fact entered.

In the case at bar the appellants are not convicted of a crime certain. While the evidence does not support a conviction for receiving, it cannot be said that there is no evidence of concealing. The sentence pronounced is equally applicable to either.

We hold that the learned trial judge invited this error by his charge; and the uncertainty which we hold to be fatal is nurtured clear through the final judgment and into this court. There is no conviction of a specific crime for us to reverse. Nor is there any way that we can determine what the jury meant to convict of. It is not beyond possibility that they found guilt of receiving stolen property, since that offense was charged, even though unproved.

We see no alternative to a reversal and a remand for a new trial, and it is so ordered.

GALBREATH and DAUGHTREY, JJ., concur.

OPINION ON PETITION TO REHEAR

RUSSELL, Judge.

A proper petition to rehear has been filed by the State. Since these convictions were reversed upon an unbriefed error, we commend the State for bringing to our attention its position. While there is some support in the case law for the acceptance of a general verdict and the application of it to the highest good count in an indictment and the rendering of a judgment thereon, the case at bar is readily distinguishable.

In the instant case three offenses of equal rank were charged. The trial judge charged the jury that they need not decide of which offense they found guilt. They reported simply “guilty”, which verdict was converted by the trial judge into “guilty as charged”. The judgment, as we said in our original opinion, nowhere says of which of the three crimes the appellants were found guilty. They stand convicted, as of this day, of no specific crime. Such a procedure is not valid. How can we review the evidence to determine venue, corpus delicti, etc., if we do not know what the conviction is for? All of the indictment counts are good, so we are not casting out a bad count. All of the counts are for offenses of the same sentence level, so we cannot reasonably select a “greater” offense and apply the verdict to it. The sentence set is equally applicable to all three charges.

The State relies upon T.C.A. § 40-2707 to support the form of this verdict. That statute permits, inter alia, a verdict of “guilty as charged in the indictment”; but implicit in that permission is the fact that there is a single charge to which the verdict can be applied, and that the court will then render an explicit verdict of guilty of that specified offense. An alternative form of verdict is set out in the same statute “guilty of — (whatever may be the offense charged, [and guilt found of])”, which form calls for the insertion of the specific name of the offense, and obviously should be used either when more offenses than one are explicitly charged in separate counts or when the explicitly charged offense includes lesser offense(s). We hold that T.C.A. § 40-2707 does not validate the verdict in this case, given the total context.

We hold that State v. Williams, 490 S.W.2d 519 (Tenn.1973), in which the Supreme Court validated a certain amount of verdict reformation by the trial judge, does not make the instant reformation to “guilty as charged” a proper verdict. The trial judge apparently was operating on the premise that neither he nor the jury need ever select which of the three offenses were actually committed. This was error. In law and in truth, one could be guilty of both larceny and concealing stolen property, or receiving stolen property and concealing stolen property. The crime could be committed in different counties, even. They are separate offenses.

We note the dictum in the case of Cook v. State, 84 Tenn. 461, 1 S.W. 254 (1886) relied upon by the State, saying:

“ * * * His Honor instructed the jury, that if they found the prisoner guilty, they must designate on which count of the indictment they so found, and they thereupon found him guilty upon the second count, as above stated. This instruction, in such a case, was improper, and should not have been given, as a general verdict would have been sustained, and in such cases it is often difficult to determine precisely whether a party has been guilty of the larceny of the goods or feloniously receiving them, when there is no doubt of his guilt of either one or the other offense, and the whole case ought to be left to the jury upon proper instructions as to each.”

This gratuitous statement is eroded by the language of Davis, alias J. Hennessy v. State, hereinafter discussed, and is nonsense. It implies that the jury does not ever have to face up to the ultimate decision, and that the judge can convert a general verdict into a judgment that was never in fact made. It also completely ignores the fundamental concept that separate indictment counts represent separate and distinct charges.

The State cites Chapple v. State, 124 Tenn. 105, 135 S.W. 321 (1910). This case is supportive of the State’s position. Two defendants were tried in a two-count indictment charging burglary and larceny in the first count and receiving stolen property in the second. The opinion says that “The plaintiffs in error were convicted”, but does not say of what. It tells that the jury verdict was a general verdict. The opinion follows the rule that “where both counts are good, and there is no evidence to sustain one of the counts, a general verdict upon a correct charge will be applied to the count which is sustained by the evidence”. The Court says further:

“It is clear that the jury intended to find John Chappie guilty under the first count, and W. A. Dawson under the second count, as there was evidence to convict John Chappie under the first count, and none against him under the second count, and evidence to convict W. A. Dawson under the second count, and none to convict him under the first count.”

In effect, this rule would allow a jury to find “guilty of something charged”, and the trial judge to apply that verdict to any charge validly made in the indictment and sustained by the proof. It is obvious that such a rule could never be intelligently applied where a charge or charges contained included offenses. Evidence of the greater will almost always support a conviction for an included offense. Would one always assume, contrary to plain experience with juries returning explicit verdicts, that the general verdict of guilt was always for the greatest offense of which the State presented some proof? How could the judge, in a case such as Chappie, know that the jury really accepted as true all of the State’s proof as to a certain offense, unless they said so?

The State cites Peek v. State, 213 Tenn. 323, 375 S.W.2d 863 (1964), which case does, by way of dictum, repeat the rule that in such a case of multiple charges a general verdict will be applied to a good count and a judgment thereon sustained. However, Peek is more supportive of our holding in the case at bar than it is of the State’s position, when the true holdings are considered. It dealt with a two-count indictment charging larceny of an automobile in one count, and receiving the stolen car in the other. Explicit guilty verdicts were found as to each count, and separate concurrent sentences set. The Court set aside one, on the general proposition that larceny and receiving convictions will not both lie. The Court implicitly approved a separate verdict as to each count, the procedure of that case.

In the case of Mendolia v. State, 192 Tenn. 656, 241 S.W.2d 606 (1951), referred to in our original opinion, our Supreme Court upheld general verdicts of “guilty as charged” where two of the accused were charged with armed robbery only and the third with being an accessory (before the fact in one count and after the fact in another). The accessory’s conviction was applied to the accessory before the fact count, because the sentence set was compatible only with that charge.

T.C.A. § 40-2519 is relied upon by the State, and provides:

“ — A general verdict of guilty will be sustained if there is any one good count in the indictment sustained by proof, although the other counts may be fatally defective.”

Neither this statute, nor the decisions construing it, deal with the situation represented by the case at bar. We have a general verdict returned in a case where multiple counts in an indictment are all good, and charge offenses carrying the same sentence upon conviction so that the sentence set fits all of them, and the proof makes out a prima facie case on more than one count.

The case of Davis, alias J. Hennessy v. the State, 85 Tenn. 522, 3 S.W. 348 (1887), heretofore mentioned, condemned a charge calling for a general verdict, as was given in the case at bar. The opinion reads, in pertinent part:

“After properly instructing the jury with reference to the first and second counts respectively, the trial judge said:
‘In case you find the defendant guilty, it is always safest for a jury to return a general verdict . . . and by fixing the punishment, leaving the Court the duty of affixing the count upon which the conviction should be placed.’
* * * * * *
“Though we do not approve the instruction upon this point, and think it contrary to the better practice, there is no positive error of law in it; and a reversal will not be predicated upon it when we can and do see that the defendant was not prejudiced thereby, the evidence clearly establishing his guilt of the higher offense.”

It is unnecessary for us to overrule the cases holding that a general verdict may sometimes be applied selectively by the trial judge, although such a rule obviously raises serious questions in the area of jury trial rights and due process. We are dealing with a case that does not lend itself to the application of that rule, assuming its validity-

We adhere to our original opinion, and respectfully deny the petition to rehear.

GALBREATH and DAUGHTREY, JJ., concur.


source: Caselaw Access Project

author: TATUM, Judge.

license: Public Domain

text:
    Verlin Monroe ELLISON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 10, 1976.
    Certiorari Denied by Supreme Court March 14, 1977.

      Roger A. Stetter and Robert Tucker, Legal Aid Clinic, Knoxville, Tenn., for appellant.
    R. A. Ashley, Jr., Atty. Gen., Robert L. Jolley, Jr., Asst. Atty. Gen., Nashville, Tenn., Herbert S. Moncier and Ralph E. Harwell, Asst. Dist. Attys. Gen., Knoxville, Tenn., for appellee.
   OPINION

TATUM, Judge.

The appellant was convicted of second degree murder of his wife in the Criminal Court of Knox County and his punishment was fixed at life imprisonment in the State Penitentiary. We affirm the judgment of conviction.

The sufficiency of the evidence was not assailed, but we will summarize the facts to aid in discussing the assignments: After attending a family outing, the appellant and his wife, Vicki Jones Ellison, retired at approximately 11:00 o’clock P.M., on Sunday, June 22, 1975. The appellant’s cousin, Patricia (Patti) Cunningham, age 15 years, spent the night with them at their trailer, at the appellant’s instigation. The appellant had been drinking that day.

In the very early hours of the next morning, Patti Cunningham was awakened by an argument between the appellant and his wife. She could only distinguish the victim, Mrs. Ellison, saying, “No Butch”. She again slept and was awakened by the deceased going to the bathroom. When the deceased returned to the bedroom, she heard something “falling on the bed”. She then heard a sound like “hitting plastic” that continued for five or ten minutes. After this, the appellant came into Miss Cunningham’s bedroom nude and grabbed her by the throat, raped her and threatened to kill her. He then forced her to the kitchen where she looked at the clock and learned that it was 3:00 o’clock A.M. He then walked her back into the bedroom and told her that the deceased was at “Jackie Hun-ley’s house”. He threatened to kill her if she told anyone about the rape. He forced her to bed with him and then he went to sleep. After he fell asleep, at about 4:30 A.M., Miss Cunningham left, noting that the deceased’s bedroom door was closed. She went to the deceased’s parents’ home which was on the same premises as the appellant’s trailer and told deceased’s parents about the argument between the appellant and the deceased. She did not tell them about the attack upon her.

At 5:00 o’clock A.M., the deceased’s father, Herman Jones, went to the trailer to awaken the deceased for work. The appellant came to the door completely nude. When Mr. Jones came into the trailer, the appellant went to the deceased’s bedroom and spoke to the deceased, but she did not answer him. The appellant came back to the living room wearing trousers and stated that the deceased was getting up to go to work. At approximately 5:15 A.M., the appellant came to the home of the deceased’s parents and asked the deceased’s mother to talk with the deceased about their marital problems.

At about 6:00 o’clock A.M., the appellant returned to the home of the deceased’s parents and told Patti Cunningham that the deceased wanted to see her. She accompanied him to the trailer where he bound her arms and legs, after telling her, “You thought you would get away from me, didn’t you”. He then brought the deceased’s sister, Sandra Jones, age 13, to the trailer and bound her and then he brought the deceased’s brother, Ronnie Jones, age 10, to the trailer and bound him. He then put Sandra Jones in the trunk of his car and he put Patti Cunningham in the front seat. He drove the car to a deserted area, close to a stream, when he put Patti Cunningham in the trunk of the car and took Sandra Jones some distance from the car and raped her. The defendant told Sandra Jones that the deceased was with an old boyfriend. At about 11:00 A.M., on Monday, the appellant took the two girls to a point near his grandmother’s home and left them. He then went to Mississippi where he remained for 3 days before returning to Tennessee and surrendering to police.

The deceased’s nude body was discovered by her brother, Gary Jones, age 16, in the master bedroom of the trailer between 8:00 o’clock and 9:00 o’clock A.M., on Monday, June 23. Her time of death was fixed at between 1:00 o’clock A.M. and 5:00 o’clock A.M. on June 23. She had been suffocated with a bed sheet.

In his first assignment of error, the appellant claims that the Trial Court erred in denying his motion, made at the close of the State’s case in chief, for an evidentiary non-jury hearing. The reason for the proposed hearing was to determine whether the appellant could be cross-examined for impeachment purposes concerning his 1968 second degree murder conviction. The appellant desired the advance ruling to assist him in deciding whether to testify in his own behalf. The State’s brief does not respond to the merits of the appellant’s contention. At the conclusion of the State’s proof in chief, the appellant’s counsel informed the Court that appellant pled guilty in 1968 to second degree murder. The appellant desired to introduce evidence to the effect that prior to pleading guilty in 1968, he had made an invalid, extra-judicial confession. The defense contended that the confession was made without benefit of counsel and contrary to instructions from his father and that this invalid confession induced his guilty plea. This was the only ground alleged in support of the appellant’s motion during the trial of the case. The record is void of any allegations that appellant was not represented by competent counsel when he entered the guilty plea in 1968. Under the facts as related to the Trial Judge by counsel at trial, the learned Trial Judge correctly informed counsel that if the appellant testified, the Court would permit cross-examination as to the appellant’s prior conviction if the question was properly framed and properly presented at the proper time. The appellant did not testify. We think that the learned Trial Judge was correct.

In Recor v. State, 489 S.W.2d 64, 68 (Tenn.Cr.App.1972), this Court held:

“Ground 3 complains that an illegally obtained confession was used against him. On the assumed premise that his guilty plea was understanding^ and voluntarily entered, this allegation states no possible basis for relief, because the question was thereby waived. Reed v. Henderson, (6th Cir. 1967), 385 F.2d 995; Trolinger v. Russell, 1 Tenn.Cr.App. 525, 446 S.W.2d 538.”

See also, Crum v. State, 530 S.W.2d 103 (Tenn.Cr.App.1975); Parker v. State, 492 S.W.2d 456 (Tenn.Cr.App.1972); Ray v. State, 480 S.W.2d 919 (Tenn.Cr.App.1972).

The guilty plea waived all nonjurisdic-tional and procedural defects and constitutional infirmities. The facts given the learned Trial Judge, if correct, would not justify exclusion of the previous conviction for impeachment purposes.

In a motion in limine filed by appellant, he assigns as the ground for the exclusion of the impeaching evidence of the 1968 conviction that it is “so remote in time as to be irrelevant to the issues in this case”. In State v. Morgan, 541 S.W.2d 385 (Tenn.1976), the Supreme Court stated that a conviction within ten years prior to trial is not too remote as to be irrelevant for impeachment purposes. There was no merit to the written motion in limine.

The appellant relies upon Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972), in which the United States Supreme Court held that a prior conviction which was obtained against the accused without benefit of counsel, or waiver of counsel, was not admissible for purposes of impeachment; and, further, that the burden of proof as to the invalidity of the prior conviction was upon the defendant. Loper v. Beto, supra, is not applicable in this case.

Moreover, there is no authority in this state to support the appellant’s contention that a trial should be interrupted in order to allow a collateral attack upon a prior trial with a hearing to determine all of the constitutional questions that might be raised concerning the prior trial. It was the defendant’s option to testify if he so desired. He declined to testify, as was his right. If he had chosen to testify, he would have been subject to the same methods of cross-examination as would any other witness. Gray v. State, 194 Tenn. 234, 250 S.W.2d 86 (1952).

The appellant, in his brief, charged grounds for the exclusion of the evidence of the prior conviction which were not mentioned during the trial, including the charge that appellant had incompetent counsel. The Trial Judge cannot be put in error for failure to act on matters mentioned for the first time in an appellate brief. See, Kirby v. State, 214 Tenn. 296, 379 S.W.2d 780 (1964); Pruitt v. State, 3 Tenn.Cr.App. 256, 460 S.W.2d 385 (1970).

Moreover, to invoke a procedural rule that permits the interruption of a trial on a motion during the trial, collaterally attacking a previous conviction, without prior notice to the State, would deny the State any opportunity to defend the attack. The prosecuting attorney would not be given the opportunity to prepare for the collateral issue, conduct appropriate investigation, subpoena witnesses or otherwise meet the defendant’s proof. State v. Morgan, supra, did not intend such procedure.

The preferred procedure for testing the validity of a prior conviction is to institute a separate proceeding for that purpose as provided under T.C.A. § 40-3801 et seq. This procedure is authorized even when a petitioner has served his sentence and is no longer on parole, if there is a possibility that any collateral legal consequence will be imposed on the basis of the challenged conviction. Holt v. State, 489 S.W.2d 845, 847 (Tenn.Cr.App.1972); Daugherty v. State, 4 Tenn.Cr.App. 355, 470 S.W.2d 865 (1971).

Assignment No. I is overruled.

In separate assignments, the appellant complains of the action of the Trial Judge in admitting evidence of the rape of Sandra Jones and Patricia Cunningham.

The appellant introduced an expert witness who expressed the opinion that the deceased died of acute heart failure from the toxic effects of inhalation of freon propellant contained in a bottle of cologne found at the foot of her bed; that she fainted after inhaling the fumes and fell back onto the bed and that her tongue and jaw caused partial obstruction of the airway resulting in a combination of asphyxial death. associated with this mechanism together with the precipitating cause of inhalation of the toxic freon. The appellant’s expert also testified that in his opinion, a sheet was used by the deceased in a tent-like fashion to contain the vapors of the cologne and that the deceased had been using the bottle as a dildo for self sex-gratification.

The State’s evidence was that if the bottle had been manipulated in deceased’s vagina, this would have occurred after she lost consciousness.

We have reviewed many cases touching on the question of the admissibility in evidence of other crimes. The Supreme Court, in Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963) summarized the prevailing law in Tennessee:

“The general principle to be collected from these, and other authorities, is that evidence of another crime or crimes than that charged in the indictment and for which defendant is on trial, is not admissible unless such evidence is relevant to prove his guilt of that crime. The test of relevancy is furnished not by law, but by logic and general experience (Thayer, Preliminary Treatise on Evidence (1898), 264-266). Morgan, Basic Problems of Evidence (1961), 183-194; Trautman, Logical or Legal Relevancy — A Conflict in Theory, 5 Vand.L.Rev. 385, 403 — 410.
It is generally agreed that evidence of other crimes by defendant is not admissible merely to prove his disposition to commit such a crime as that on trial; but such evidence is admissible when it is relevant to prove some other material issue on trial; for instance, when it tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan for commission of two or more crimes so related to each other that proof of one tends to establish the others; and (5) the identity of defendant on trial. Morgan, supra; Harris v. State, [Harris v. State, 189 Tenn. 635, 227 S.W.2d 8] supra; Woodruff v. State, [Woodruff v. State, 164 Tenn. 530, 51 S.W.2d 843] supra.
The question of the admissibility of evidence of other crimes to prove defendant’s guilt of the crime on trial underwent elaborate consideration in Mays v. State, [Mays v. State, 145 Tenn. 118, 238 S.W. 1096] supra. There, the Court said:
‘Evidence which is relevant to defendant’s guilt is not inadmissible because it proves or tends to prove him guilty of another and distinct crime. It frequently happens that two distinct offenses are so inseparably connected that the proof of one necessarily involves proving the other, and in such a case on a prosecution for one evidence proving it cannot be excluded because it also proves the other. Evidence of another and distinct crime is admissible if it was committed as a part of the same transaction and forms part of the res gestae.
******
‘It is also admissible, where the crime charge[d] is a part of a plan or system of criminal action, to offer evidence of other crimes near to it in time and of similar character, to show the knowledge and intent of the accused, and that the crime with which he is charged was not the result of accident or inadvertence.’
We think the Trial Judge properly admitted in evidence the testimony of the witness Mrs. Sneed as to the circumstances of defendant’s breaking and entering her apartment, his threats of her with the knife, his forcing her to engage in sexual perversion with him, his criminal assault on her with intent to force her to have sexual intercourse with him, and his arrest by the police in her apartment. These circumstances were admissible and relevant as tending to prove defendant’s guilt of the crime specified in the indictment and for which he was on trial.” 212 Tenn. 464, 370 S.W.2d 523, at 529.

This Court, in Coffman v. State, 3 Tenn.Cr.App. 634, 466 S.W.2d 241, 245 (1970) stated the “single transaction” rule as follows:

“So, the true rule unquestionably settled is that where the acts are all so closely related, in point of time and place, and so intimately associated with each other that they form one continuous transaction, the whole transaction may be shown, the reason being that all such acts are admissible as necessary parts of the proof of the entire deed, or as inseparable elements of the deed or as concomitant parts of the criminal act. [citations omitted]”

In Canady v. State, 3 Tenn.Cr.App. 337, 461 S.W .2d 53, 57-58 (1970), this Court, citing UNDERHILL, CRIMINAL EVIDENCE § 191 (4th ed. 1956) discussing “res gestae” stated:

“Res gestae is from the Latin meaning ‘things done’, and includes the circumstances, facts and declarations incidental to the main fact or transaction, necessary to illustrate its character, and also includes acts, words and declarations which are so closely connected therewith as to constitute a part of the transaction. The expression, res gestae, as applied to a crime, means the complete criminal transaction- from its beginning or starting point in the act of the accused until the end is reached. What in any case constitutes the res gestae of a crime depends wholly on the character of the crime and the circumstances of the case.
The rule of res gestae under which it is said that all facts which are a part of the res gestae are admissible, is a rule determining the relevancy and not the character or probative force of the evidence. If the court determines that the fact offered is a part of the res gestae, that fact is then relevant. Relevancy is always a judicial question to be determined according to the issue which is to be tried. Taking the main facts which are embraced in the commission of any crime and which are essential to be proved, it will be found, in most instances, that they are connected with others which are not essential to be proved, but which tend more or less to prove those facts which are to be proved. Every occurrence which is the result of human agency is more or less implicated and involved with other occurrences. One event is the cause or result of another, or two or more events or incidents may be collaterally connected or related. Circumstances constituting a criminal transaction which is being investigated by the jury, and which are so interwoven with others, and with the principal facts which are at issue that the[y] can not be very well separated from the principal facts at issue without depriving the jury of proof which is necessary for them to have in order to reach a direct conclusion on the evidence, may be regarded as res gestae. . . .”

In Bivens v. State, 4 Tenn.Cr.App. 580, 474 S.W.2d 431, 435 (1971), this Court said:

“. . .In substance, ‘res gestae’ may be capsuled as to what is relevant. There is no set formula to measure what is res gestae, but it depends upon the facts and circumstances found in the record and in the final analysis addresses itself to the discretion of the trial court. Where it is doubtful, it should go to the jury. . . ”

The authorities all agree that each case must be decided on its own facts. Canady v. State, supra; Shelton v. State, 3 Tenn.Cr.App. 310, 460 S.W.2d 869 (1970).

We think that the evidence of appellant’s conduct after the death of his wife, including the rape of the two teenage girls, was admissible for many reasons. It tended to show that his wife’s death was not by mistake or accident as contended by him. Human experience teaches that such conduct is not in congruity with a theory that his wife lost her life by mistake or accident. An innocent person whose wife had lost her life as theorized by appellant would not likely leave her body in bed without reporting the circumstances and fact of her death and go on a sex escapade of this kind, telling the rape victims that his wife was visiting elsewhere.

The appellant’s conduct under the facts of this case tended to establish a common scheme or plan for commission of more crimes so related to each other that proof of one tends to establish the others. There was evidence upon which the jury could find that the appellant suffocated his wife by a sheet and that after she lost consciousness, he gratified himself sexually by manipulating the bottle in her vagina and as a continuation of the same sex escapade, gratified himself sexually by raping the two girls. For the same reason, the two rapes indicated a sexual motive for the crime of murder.

Further, we think that under the facts of this case, the conduct of the defendant in committing the two rapes was a part of the same transaction with the murder and formed a part of the res gestae.

Assignments II and V are overruled.

The appellant complains that he was not furnished a copy of a pre-trial statement given by the witness, Patricia Cunningham, to the Assistant District Attorney General, and that a sealed copy of the statement was not made a part of the record by the Trial Judge in order to facilitate appellate review.

The appellant made motions prior to and during the trial of the case, asking that he be furnished the statement of the witness, Patricia Cunningham. The motions were based upon the holdings in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967). In its reply brief, the State cites T.C.A. § 40-2044 (the Tennessee discovery statute) and does not answer the appellant’s contentions. The State’s brief is of no benefit as the appellant concedes that he is not entitled to the statements by virtue of T.C.A. § 40— 2044.

The appellant stated that he had “some information that we have that she made certain allegations at the outset of this case which will be inconsistent with her testimony”. The appellant did not characterize the “information” or give any specifics with regard to it. Before and after the witness testified, the District Attorney General stated that he had made appellant’s counsel acquainted with the facts in his file and that the witness did not testify in contradiction of the statement that she had given him. The District Attorney General did state that the witness did not at first tell the police officers that she had been raped, but the witness was questioned on this subject during her cross-examination and she readily admitted that she withheld this information from the police officers for a time. There is no claim that the prosecution suppressed any evidence favorable to the appellant, which was material either to his guilt or to his punishment. The District Attorney General having assured the Court that the statement of the witness was not contradictory to her testimony, we find no fault in the Trial Court’s denial of the motion to require Patricia Cunningham’s statement to be given to the appellant. See, United States v. Conder, 423 F.2d 904 (6th Cir. 1970); Williams v. State, 491 S.W.2d 862 (Tenn.Cr.App.1972). There is no authority supporting the appellant’s contention that the statement be made a part of the record in this case. The case was tried prior to the enactment of Chapter 628, Public Acts of 1976.

We commend defense counsel upon their thorough and well-written brief. We applaud their efforts on behalf of their client, but we must affirm the judgment of the Criminal Court of Knox County.

WALKER, P. J., and DUNCAN, J., concur.


author: BROWN, Commissioner. DOUGLAS, Judge,

text:
    David CARLISLE, Appellant, v. The STATE of Texas, Appellee.
    No. 52046.
    Court of Criminal Appeals of Texas.
    March 9, 1977.
    Rehearing Denied May 11, 1977.
    Frank Maloney and Philip A. Nelson, Jr., on appeal, Austin, for appellant.

      Jim D. Voliers, State’s A tty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

This is an appeal from a conviction for murder. Appellant was tried before a jury which assessed his punishment at twenty-five (25) years in the Texas Department of Corrections.

Appellant challenges the sufficiency of the evidence in his first ground of error. The deceased, Betty Ann Carlisle, was the appellant’s former wife. It appears from the record that the couple was attempting a reconciliation at the time of this murder.

The body of the deceased was discovered at approximately noon on August 1, 1974. Ronnie Anson testified that he found the body sitting in the front seat of a 1974 Pontiac Grand Prix, later shown to belong to appellant. The car was parked in a vacant lot near a store known as Bob’s TV Shop. Anson said that after he discovered the body he called his brother Bob, owner of the shop. The sheriff was summoned and both Anson and his brother testified that they were present when the sheriff began his investigation. They discovered several empty beer cans and an unopened bottle of whiskey on the floor of the car. They also found the deceased’s purse and stated that there was a considerable amount of money stuck in the compartments of the purse. Also found in the purse and in the glove compartment of the car were several bottles containing various types of pills. Both men also described an area which they said the sheriff referred to as a “struggle area” some twenty or thirty feet from the car. It appears that the ground surrounding the car was muddy from rain at an undetermined time and many footprints appeared in the damp caliche soil. The so called “Struggle area” appeared to have a number of footprints in an irregular pattern as if someone had struggled or staggered around. Also scattered around the struggle area was about fifty dollars in bills of various denominations.

Two witnesses stated that they saw a car parked near Bob’s TV in the early morning hours of August 1. G. T. Watkins stated that he passed the shop at 7:00 a. m. and saw the Grand Prix and another car which was parked in front of the shop. He said that he circled the area and drove near the Grand Prix and saw someone who appeared to be asleep in the driver’s seat of the car. He learned of the killing later that day. Mrs. Verna Richardson testified that she passed the shop between 5:30 and 6:00 a. m. on August 1 and saw the Grand Prix parked in a slightly different position than that described by the other witnesses. She also stated that both doors of the car were open and the dome light was on. She further stated that she saw another car parked in front of the shop. She said that this car was a Mustang, but could not describe the color. Bob Anson testified that he also saw the Mustang and that its owner came into his shop during the morning before the discovery of the deceased and apologized for blocking his parking area. He stated that the man was of Mexican descent and that he “jump-started” the Mustang and left. Mrs. Richardson’s son and daughter-in-law both testified that they lived within a block of the shop and that they were awakened at approximately 5:30 or 6:00 a. m. by a loud noise which was described as similar to an aerosol spray can popping.

Leon Gorrell, deputy sheriff of Deaf Smith County, stated that he saw the deceased in the company of appellant and another woman at Big Daddy’s Cafe near Hereford on the night of July 31-August 1. He said that he spoke with the deceased and that she left with appellant at about 2:00 a. m., August 1. Peggy Adams, a waitress at Big Daddy’s, testified that she also saw appellant and the deceased together in the cafe on the night in question. She said that she spoke with the couple and that everything seemed to be all right. There was no evidence of disagreement between them. She said that they left in appellant’s car at about 3:00 a. m. She further stated that she had heard that appellant and the deceased were getting married again and that she had seen the deceased getting pills from truck drivers on several occasions and had seen her take “white glossies” or “uppers” on several occasions.

Dr. Jose Dias-Esquivel, the physician who performed the autopsy on the deceased, testified that he discovered a bullet wound through the right arm passing into the chest under the right breast, penetrating the right lung, the pericardium and left lung and lodging in tissue under the left breast. He stated that a second bullet entered just under the first wound, followed a similar path through both lungs and also lodged in tissue under the left breast. A third bullet entered through the right shoulder, passed through the right lung and lodged in the second thoracic vertebra. Dr. Dias also stated that there were four more wounds on the body which he believed were caused by two more bullets passing completely through the body from front to back. On cross-examination it was developed that the chemist who examined the clothing of the deceased was of the opinion that these last two bullets entered from the back and exited through the front of the body. Dr. Dias stated that his tests were not positively conclusive about the path of those bullets. He also testified that he found no evidence of drugs or alcohol in the body of the deceased. Time of death was not positively shown. Dr. Dias estimated time of death at six to eight hours prior to his examination, which took place on the morning of August 2. However, he qualified this opinion by stating that if the body had been embalmed (he did not remember if it had) then death \ Tould have taken place six to eight hours prior to embalming. It was later shown that the body had been embalmed on the afternoon after it was discovered.

An attendant at a Phillips 66 service station located within a block of Bob’s TV shop testified that he saw a man in the telephone booth on the corner near the station sometime between 7:30 and 9:00 a. m. on the day the deceased was discovered. He stated that the man stood in the booth for over an hour and possibly as long as two hours.

The manager of the sporting goods department of a Gibson’s Discount Center in Plainview testified that he sold appellant a .38 caliber pistol on July 23, 1976. The pistol was found by Deputy Sheriff Henry Minter in a ditch near Bob’s TV on the afternoon of August 1.

Minter testified that he participated in the investigation and observed caliche mud on the inside of the ear on the front seat, on the console and on the back seat. He said that the deceased had no mud on her clothes or boots. He also observed the boot tracks and the “struggle area.” He further stated that he observed another area just outside the passenger door of the car where it appeared that someone had fallen down in a mud puddle. He stated that there was the imprint of a shirt and buttons in the caliche in this area. He stated that the boot tracks appeared to go around the car to the driver’s door and that there was a muddy hand print on the driver’s door. He stated that he followed the boot tracks to the “struggle area” and away from the scene to the Phillips 66 station and that the attendant told him about the man in the telephone booth. He examined the booth and found several pills scattered on the floor of the booth. He later returned to the scene and followed the boot tracks in another direction toward an old wrecked car nearby and found another muddy hand print on that car. He stated that he followed these tracks into a ditch where he found a billfold containing appellant’s identification cards and a $100 bill and a $1 bill. A few feet further he found the pistol. Minter testified that in his opinion all of the boot tracks were made by the same pair of boots.

Deputy Sheriff Tom Atkins testified that he went to the scene of the investigation with Minter and that he was ordered to return to the sheriff’s office to retrieve a camera. When he arrived at the office he was met by appellant’s father. Atkins said that he went outside to a car where appellant was sitting with his brother. Appellant got out of the car and went inside with his father and Atkins. Atkins stated that appellant appeared to be unsteady and that he seemed very woozy as though he were drunk or on pills. He said that appellant had mud on his clothes and boots. Atkins said that he summoned a doctor at the request of appellant’s father and that the doctor arrived within a few minutes and examined appellant. Atkins said that appellant’s father told him that appellant had picked up a hitchhiker and had been hijacked. He said that the sheriff arrived shortly thereafter and following a brief discussion with appellant and his father, he placed appellant under arrest. Atkins said that appellant had two $100 bills and one $1 bill in his possession at the time of his arrest. Atkins also said that he later participated in a thorough examination of the car and that no bullet holes were found in the car.

Sheriff Charles Lovelace testified that he found five empty Coors beer cans and one full can on the floor of the car as well as an unopened pint of liquor. He also stated that there was a considerable amount of caliche mud on the front seat and floor and on the console and back seat of the car. He also expressed the opinion that all of the boot tracks around the car were made by one person. Furthermore, since the deceased had no mud on her boots, he concluded that she was shot while sitting in the car. He further stated that in addition to the beer cans, liquor and pills in the car, he recovered a zippered bank bag containing ten live .38 caliber shells. He also found a suitcase full of men’s clothing in the car and a pair of swimming trunks on the ground just under the left side of the car. He said that he spoke with appellant that afternoon and that he seemed to be “coming off a drunk.” He stated that he took one of appellant’s boots and placed it in one of the tracks at the scene and that it matched in length, width and heel. He said that he made plaster casts of several of the tracks and that he thought the design which appeared on the heel of appellant’s boot matched one of the plaster casts.

A chemist from the Department of Public Safety testified that he examined the victim’s clothing and determined that the two bullet holes in the back of her blouse were entrance holes. However, he further stated that he found a total of five holes in the blouse, which would seem to conflict with the testimony of the pathologist who stated that he found three bullets in the body and four other wounds which were made by two bullets passing through the body, for a total of seven wounds. The chemist further stated that he analyzed samples of the pills found in the car and found that some of them contained amphetamines while others contained barbiturates and others contained no controlled substance. He also stated that he found human blood on the pistol, the zippered bank bag, and appellant’s trousers. No finger prints were found on the weapon.

Appellant’s brother and father both testified that they drove from Hereford to Far-well in response to appellant’s phone call and found him in the phone booth at noon on August 1. They both stated that he appeared dazed and woozy and unsteady on his feet and that his speech was nearly incoherent. They said that he had mud on his clothes and boots and that he was bleeding from a cut on his forehead.

Appellant’s sister testified that she spoke with him on the telephone and that he said that he was in a phone booth. She said that he told her that Betty Ann (the deceased) had been hurt, that they were on their way to get married and had stopped to pick up a hitchhiker. She said that his speech was slurred and that he was not making complete sentences, but rather skipped around in trying to tell her what happened. She understood appellant to say the hitchhiker had pulled a gun on him and made him get in the back seat of the car. He then asked appellant if he had any pills and appellant gave him a bottle of Valium, which the hitchhiker forced him to take. Appellant told his sister that the hitchhiker threatened to kill him if he did not take the pills, so he took them and washed them down with a beer.

The doctor who examined appellant at the sheriff’s office testified that appellant appeared to be drugged and that he told him that he had been forced to take Valium tablets. He stated that appellant had several bruises and abrasions on his head. It was later developed that the doctor was wearing shoes with a boot-type heel and that he was at the scene of the investigation and stepped in one of the tracks which the sheriff had circled.

The director of the Major Crime and Narcotic Control Unit of Hale County testified that on July 20,1976 appellant came to talk with him about his ex-wife (the deceased). He stated that appellant wanted to know if he was acquainted with the deceased and that he was worried that she was involved with the sale or distribution of pills from her job at Big Daddy’s Cafe.

Appellant testified in his own behalf and stated that he did not kill his wife. He said that he picked her up early in the evening of July 31 and that they went to Big Daddy’s and were there until after 1:00 a. m. He said they left the cafe and drove around and the deceased asked if she could drive his new car, so they switched places. He said they drove around for a while longer and he drank a beer and they talked about getting remarried. He said they decided to get married and continued driving toward Plainview to get some of his clothes from his home. As they were driving to Plain-view the deceased pulled to the side of the road to pick up a hitchhiker because it was raining and she felt sorry for him. Appellant described him only as “a white man.” The stranger told them he was going to Amarillo and so they proceeded to a small town where they were going to turn to continue toward Plainview. Appellant said that he told the hitchhiker he would probably want to get out there to catch a ride on to Amarillo and he replied that he would be going on with them. Appellant said that this startled him and he turned around and the man was holding a gun on him. He said that the deceased asked what was going on and the man told them to do as he said or he would kill them. Appellant said that he asked if they had any pills and that he got a bottle of Valium which the deceased had given him and gave it to the stranger. He said that the man then ordered him to take the pills and drink several beers. Appellant stated that from this point on his memory of the events becomes very hazy because the pills took effect. He vaguely remembered being asked for the keys to his house and said that this is when the suitcase was packed. The next thing he remembered was waking up to loud noises and finding himself on the floor of the car. He said that he fell out of the car and grabbed at someone and was hit over the head and that he heard the deceased crying for help. It was developed during appellant’s testimony that the time span from the time the hitchhiker was picked up until he pulled the gun and ordered appellant to take the pills was no more than fifteen minutes, by appellant’s own estimate. Appellant was not able to state whether the gun the man pulled was appellant’s .38 caliber pistol, which was kept in a zippered bank bag under the seat, or the stranger’s own weapon.

The court charged the jury on the law of circumstantial evidence and intoxication. Appellant contends that the circumstantial evidence does not exclude every other reasonable hypothesis except his own guilt.

Reliance is had upon Kitchens v. State, 145 Tex.Cr.R. 272, 167 S.W.2d 762 (1943), an arson case in which the State relied on circumstantial evidence. The evidence reflected that the accused had shown malice toward the oil company whose tanks were set on fire. Footprints were found leading from the defendant’s house to the nearby oil tanks and back toward his house. The defendant’s feet fit into those tracks. It was shown that the arsonist used pieces of string, cheese cloth, clothes pins and matches to set the fire. The officers found similar string in the defendant’s possession, similar cheese cloth and clothes pins on his clothes line, and similar matches in his pocket. The defendant’s wife testified that he came home drunk at about 11:30 p. m. and she put him to bed and he was in bed when the tanks exploded after midnight. We held the evidence insufficient, saying that even though the evidence showed that someone from the defendant’s home may have destroyed the tanks, it was not shown that the defendant and his wife were the only ones there during the time the fire was set.

Although the Kitchens case contains some analogous circumstances, we recognize and apply the rule that every circumstantial evidence case must be tested by its own facts to determine the sufficiency of the evidence. Indo v. State, 502 S.W.2d 166 (Tex.Cr.App.1973); Baker v. State, 447 S.W.2d 172 (Tex.Cr.App.1969).

We have held in a long line of cases that a conviction on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the accused, and proof amounting only to a strong suspicion or mere probability is insufficient. Indo v. State, supra; Flores v. State, 489 S.W.2d 901 (Tex.Cr.App.1973). The jury in a circumstantial evidence case is authorized to accept or reject any or all testimony of any witness and they may look to all the evidence offered by the State as well as that offered by the appellant. Angle v. State, 486 S.W.2d 308 (Tex.Cr.App.1972); Indo v. State, supra.

The fact situation of Indo v. State, supra, is instructive. There the accused summoned authorities to his home and stated that a burglar had broken in and shot his parents and that he had returned fire. The evidence showed that the parents were killed by several shots from a .22 caliber weapon. The accused was in possession of a .22 rifle at the scene and the clip contained six live rounds, but was designed to hold eleven or twelve rounds. Officers found six .22 caliber hulls in various locations throughout the house. We held the evidence sufficient, stating that “only appellant’s testimony raised the possibility that some unidentified burglar may have shot his (parents)”, but “we have but to point to a few of the discrepancies in his testimony which the jury may have observed.”

In the instant case the jury heard only appellant’s testimony that an unknown hitchhiker was involved in this murder. He was corroborated at trial by his sister and father who could testify only to what he told them. Appellant asks us to believe his solitary story that he and his ex-wife decided to remarry; that they decided to go to his home and get his clothes prior to the nuptials and that the bride-to-be expressed no desire to obtain any other clothing; that on the way to get married they stopped to pick up a hitchhiker who within minutes pulled a gun and made the bizarre demand that appellant take an overdose of tranquilizers; that this hijacker then ordered the couple to proceed to appellant’s home to get his suitcase packed; that he then shot the deceased and left her and the appellant in a new car in possession of more than three hundred dollars in cash; that he took appellant’s wallet with an additional hundred dollars and threw it in the weeds along with the murder weapon and disappeared without leaving a trace of his presence. Such a story presented to the jury only by the appellant strains credulity.

Viewing the record in the light most favorable to the State, we find that the evidence, as presented to the jury, is sufficient to support the verdict. Indo v. State, supra; Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1972).

In his second ground of error appellant contends that the trial court erred in overruling his motion for new trial on grounds of newly-discovered evidence which tends to corroborate his hitchhiker theory.

At the hearing on the motion for new trial appellant presented the testimony of Willard Clinton Wright. Wright was acquainted with appellant through his uncle Clifford Carlisle. He stated that appellant and his uncle had come to his place of business one day to inquire about some horses and that he met appellant and saw his new Pontiac which appellant was showing off. Wright stated that he knew nothing of appellant’s arrest or trial except that Clifford mentioned something about having to go to court for his nephew. Appellant’s trial concluded on April 25, 1975 and it was not until May 8 that Wright again spoke with Clifford Carlisle when he went to Car-lisle’s place to work on a horse. Wright said he asked appellant’s uncle “how he come along in court,” and that he was then informed of the nature of appellant’s trial and circumstances surrounding the crime. Wright then mentioned to Clifford that he had seen appellant’s car being driven on a highway near Plainview late at night several months prior to May 8. Neither man thought seriously about the incident at that point, but Wright said that later in the week appellant’s father called him to ask if he could remember more details and the date that he had seen the car on the highway. He stated he remembered that on the night he saw appellant’s car he was trying to round up some cattle that had strayed onto the highway from land he owned near Plainview. He said that as he was trying to round up the cattle a car pulled up and stopped in the highway to avoid hitting the animals. A man got out of the passenger door of the car and stood by the car while Wright finished gathering the cattle. Wright said that he approached the car to thank the man for waiting and that he recognized the car as appellant’s. He knew the man was not appellant and he said that when the man opened the door of the car he recognized appellant’s wife, the deceased, driving the car. He said that he spoke with her and asked if she was Betty Carlisle and she replied that she was. He then asked her where appellant was and she replied that he was asleep or passed out in the back seat. Wright said that he looked in the back seat and saw a pair of boots and someone lying down in the seat. Wright said that he thought nothing of the incident at the time because it was very late at night, later than 3:00 a. m. It was developed that Wright could pinpoint August 1, 1974 as the date of this incident. He was able to do so because on the previous day, July 31, he had filed an insurance claim for a hog that had been run over on a highway near another piece of property. Wright said that he knew the date was correct because on the same day the hog was killed he moved the cattle onto his property and they strayed onto the highway late that night. The insurance claim form reflects the July 31, 1974 date.

We note that appellant responded to the State’s evidence impeaching Wright’s credibility with competent rebuttal testimony.

The trial court has considerable discretion in granting or denying a new trial on the basis of newly-discovered evidence. To show that the court abused its discretion by not granting a new trial, the record must reflect: (1) that the evidence was unknown to the movant before trial; (2) that the failure to discover it was not due to appellant’s want of diligence; (3) that its materiality was such as would probably bring about a different result on another trial, and (4) that it was competent, not merely cumulative, corroborative, collateral or impeaching. Hernandez v. State, 507 S.W.2d 209 (Tex.Cr.App.1974); Myers v. State, 527 S.W.2d 307 (Tex.Cr.App.1975).

Appellant presented evidence that Wright’s testimony was discovered by coincidence and would not have been discovered but for his conversation with appellant’s uncle. Furthermore, the trial court specifically found that there was no lack of diligence. It was the opinion of the trial court that the evidence was merely cumulative and on that basis he overruled the motion for new trial. After reviewing all the testimony at the hearing on the motion for new trial, we agree with the trial court that appellant satisfied the first two requirements listed above. Therefore, the only issue before us is whether Wright’s testimony would have affected the jury’s verdict and would “probably bring about a different result on another trial.”

Since appellant had already testified as to the presence of a third party in the car on the night in question, and Wright’s testimony corroborates that fact, the State maintains that his testimony presents nothing new and is merely cumulative. Wright’s testimony is corroborative of the fact that a third party was present in the car, but it also establishes facts which appellant could not have known about because he was passed out in the back seat. However, the determining factor for our consideration is the effect such evidence would have on the jury in light of all the other evidence presented.

In holding above that the evidence, as presented to the jury, was sufficient to sustain the verdict of guilty, we found that it was the incredible nature of appellant’s story that made his testimony so unbelievable in the face of the many incriminating circumstances brought out during the trial. It is the incredible nature of appellant’s story, however, which makes Wright’s testimony so very significant. We are unable to state categorically that the jury would have reached the same verdict if Wright had testified in their presence. Corroboration of appellant’s testimony would certainly have affected their deliberations and might possibly have resulted in a different verdict, especially when such testimony is considered in combination with the conflicting testimony concerning the bullet wounds in the victim, her position and the absence of mud on her clothing, the lack of fingerprint evidence connecting appellant with the murder weapon, and the fact that it was not established at what time during the night it rained in Farwell to soften the ground around the car.

We find, therefore, that under the peculiar facts and circumstances of this case the trial court abused its discretion in overruling appellant’s motion for new trial. See Butler v. State, 165 Tex.Cr.R. 30, 302 S.W.2d 142 (1957) and compare Cole v. State, 474 S.W.2d 696 (Tex.Cr.App.1971). In so doing, we reiterate that errors relating to newly-discovered evidence will be considered on a case by case basis and there must be strict compliance with all four of the requirements enumerated above.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

DOUGLAS, Judge,

dissenting.

The majority erroneously reverses the conviction and holds that the trial court abused its discretion in overruling appellant’s motion for new trial on the grounds of newly discovered evidence.

Willard Clinton Wright testified on behalf of appellant at the hearing on the motion for new trial. He stated that he saw appellant’s automobile near Plainview at approximately 3:00 a. m. on the morning of the murder. He further testified that the deceased was driving the automobile and a stranger was sitting on the passenger side of the front seat. Wright related that he saw someone lying in the back seat. The deceased told him that appellant was either asleep or passed out in the back seat.

Wright testified that the man in the car did not appear to be nervous. Wright related that he was getting some cattle off of the highway when the car stopped and he thanked the people for stopping and not hitting the cattle. The only thing he could remember about the man in the car was that he was medium sized. He could not give a further description.

The State presented testimony that Wright’s reputation for truth and veracity was bad. Appellant responded with rebuttal testimony. The trial judge heard the witnesses. He was in a better position to pass upon their credibility than this Court is.

The majority correctly states that the trial court has “considerable discretion” in granting or denying a new trial on the basis of newly discovered evidence. In order for a new trial to be granted on such basis, it must be shown (1) that the evidence was unknown to the movant before trial; (2) that the failure to discover it was not due to movant’s lack of diligence; (3) that it was competent, not merely cumulative, corroborative, collateral or impeaching; and (4) that its materiality was such as would probably bring about a different result on another trial. Myers v. State, 527 S.W.2d 307 (Tex.Cr.App.1975); Henson v. State, 74 Tex.Cr.R. 277, 168 S.W. 89 (1914).

Testimony was introduced that Wright’s testimony was unknown to him before trial and the court found that there was no lack of diligence.

The majority is correct in writing “. the determining factor for our consideration is the effect such evidence would have on the jury in light of all the other evidence presented.”

An examination of the other evidence reveals that the deceased and appellant were seen together in a Hereford cafe on the morning of the crime. At approximately 3:00 a. m., they left the cafe, located about thirty miles from the scene where the deceased’s body was found.

Between 5:80 and 6:00 a. m. that morning a couple residing in Farwell was awakened by a loud noise which was similar to an aerosol spray can popping. They lived behind Bob’s TV Shop.

A woman observed appellant’s automobile in a vacant lot near the television shop between 5:30 and 6:00 a. m. She testified that both doors were open and the automobile’s dome light was on. Another witness observed the vehicle in the same location at 7:00 a. m. and saw someone who appeared to be asleep in the car.

The deceased’s body was discovered in the automobile at noon. She had been shot five times, apparently with a .38 caliber pistol. A deputy sheriff and other investigators found blood in the automobile at the right side of the driver’s seat. The ground surrounding the car was muddy. It had rained in Farwell the night before the homicide and the track of appellant’s automobile showed that it had skidded on the right side near the mud puddle which was wetter than the other ground around there. The investigators discovered caliche mud, apparently from the vacant lot, inside the car on the front seat, on the console, and on the back seat. It is apparent that the deceased was killed at this location in Farwell.

The testimony of the witness on motion for new trial that there was a hitchhiker at another place had nothing to do with the physical facts where the body was found. Only one set of tracks, appellant’s, was found at the scene.

A zippered bank bag owned by appellant and containing ten live .38 caliber shells was recovered from the vehicle. Several empty beer cans, várious bottles of pills, the deceased’s purse and wallet were also found inside the car. The wallet contained $166.00 in cash.

The investigators discovered a set of boot tracks that appeared to go from the passenger door around the car to the driver’s door. The tracks then appeared to go back to the passenger’s side and to a Phillips 66 station located nearby. After the crime, appellant had walked to that station and made several calls from a telephone booth there. He was first observed in the telephone booth between 7:30 and 9:00 a. m. Several pills were found on the floor of the booth.

The tracks also led away from the car in another direction. The deputy sheriff followed these toward an old wrecked car nearby. The tracks then led into a ditch where appellant’s wallet was found. It contained $101.00 in cash. A .38 caliber pistol containing five empty shells lay a few feet away. Appellant had purchased the pistol only eight days earlier.

The boot tracks were made by one person. Appellant’s boots matched those tracks. A Department of Public Safety chemist found blood on appellant’s trousers, pistol and bank bag.

Appellant testified that he did not shoot the deceased; that he and the deceased picked up an unknown hitchhiker while they were going to get married; that the hitchhiker forced appellant to take a combination of drugs and alcohol which rendered him unconscious; that the hitchhiker shot the deceased and vanished without leaving a trace of his presence; and that the “hitchhiker” did not take a substantial amount of cash, if any, from appellant or the deceased. The hearsay testimony given by appellant’s father and sister concerning what appellant told them after the murder is without probative value. See Hanna v. State, Tex.Cr.App., 546 S.W.2d 318 (1977); Ex parte Martinez, 530 S.W.2d 578 (Tex.Cr.App.1975).

The physical evidence surrounding the crime indicates appellant’s guilt. From the record it is improbable that Wright’s testimony would produce a different result in the event of another trial. There is no showing that the trial judge abused his discretion in implicitly finding that a different result was unlikely.

The majority’s reasoning is unsound. It asserts, on the one hand, that the nature of appellant’s story is “incredible” and “bizarre.” On the other, it holds that the trial judge abused his admittedly “considerable discretion” in overruling the motion for new trial based on appellant’s self-serving version of the facts and supported only in a small degree by not a midnight but a three a. m. cowboy. The judge no doubt thought that the jury would not believe such testimony, and if it did, no different result would be reached in another trial.

This is not a case where the trial court refused to admit testimony offered during the trial. The proffered testimony came from a man who just happened to be looking for some livestock on a road at three o’clock in the morning many miles from where the body was found in appellant’s automobile. It does not corroborate appellant’s bizarre story of how the murder was committed. The majority should require more than such flimsy evidence to reverse a conviction because the court did not grant a new trial. Before this witness appeared the trial had been completed. Many witnesses testified. The statement of facts consists of more than a thousand pages. The record concerning the motion for discovery and the voir dire examination consist of 320 pages. All of this should not have to be repeated.

There is no abuse of discretion shown on the part of the trial judge in refusing to grant a new trial. The judgment should be affirmed.