text:
    BUNKER v. STATE.
    (No. 3518.)
    (Court of Criminal Appeals of Texas.
    May 12, 1915.
    Rehearing Denied June 2, 1915.)
    1. Forgery <&wkey;10 — Instruments Which May Be the Subject op.
    Where the drawer of a check after it was paid by the bank on which it was drawn altered the date thereof and inserted a provision that it was to be applied on a particular note held by the payee and given by the drawer after the check was paid, thereby making it purport to evidence a payment on such note, he was guilty of “forgery” within the Code provision that he is guilty of forgery who, without lawful authority and with intent to injure and defraud, shall alter an instrument in writing in such manner that the alteration would, if legally made, have discharged or defeated any pecuniary obligation, as one of the tests of whether an instrument is the subject of forgery is whether, if the instrument were true, the holder would be enabled to maintain or defeat a civil suit by such instrument (citing Words and Phrases, Forgery).
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 21-25; Dee. Dig. &wkey;>10.]
    2. Indictment and Inpoemation <&wkey;119— SURPLUSAGE.
    Where a count, in an indictment charging accused with passing a forged instrument, also contained allegations that accused forged such instrument, they could be eliminated as sur-plusage.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 311-314; Dee. Dig. <&wkey;>119.]
    3. Fokgeey <&wkey;32 — Indictment^-Passing Instrument by Introducing in Evidence-Description op Court — “Justice Court.”
    An indictment, charging accused with passing a forged instrument by introducing it in evidence on the trial of an action in the court held by a justice of the peace, sufficiently designated such court as the “justice court”; such court being known and generally called by that name.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. § 64; Dec. Dig. &wkey;?32.
    For other definitions, see Words and Plirases, First and Second Series, Justice Court.]
    4. Forgery <&wkey;16 — Passing Forged Paper-Parties to Ofpenses.
    Pen. Code 1911, art. 77, provides that if one cause an innocent agent to commit an offense, he becomes a principal. Accused, in an action against him on a note, handed to his attorney, and his attorney offered in evidence, a check which, after it had been paid, had been so altered as to apparently evidence a payment on such note. It did not appear that the attorney knew or suspected that the check was forged, while the evidence showed that accused did know that fact, and that he testified to the genuineness of the check. Held, that the act of passing the forged instrument was that of accused, and not of his attorney.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 51-53; Dec. Dig. &wkey;>16.]
    5. Forgery ¡&wkey;34 — Passing Forged Paper-Issues, Proof, and Vaeianoe.
    Though an indictment for passing a forged check alleged that the bank upon which the check was drawn was incorporated, it was not necessary to prove such allegation; the instrument not having been passed on the bank but on another.
    [Ed. • Note. — For other cases, see Forgery, Cent. Dig. §§ 85-102; Dec. Dig. &wkey;34.].

      6. Criminal Law <&wkey;402 — Evidence—Admissibility.
    Where the alleged forged instrument and other papers material on a trial for passing a forged instrument had disappeared after being placed on the judge’s desk, on the trial in a former prosecution, it was not error, in connection with evidence of their loss and the search made therefor, to admit evidence that accused had been tried in such other case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 887, 888; Dec. Dig. <§=> 402.]
    7. Criminal Law <&wkey;402 — Evidence — Best and Secondary Evidence.
    On a trial for passing a forged instrument, where accused objected to secondary evidence of the contents of the forged instrument and other material papers which had been lost, it became incumbent upon the state to show their location when last seen, the search made therefor, and the loss thereof, and when this was shown, secondary evidence of their contents became admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ ¿87, 888; Dec. Dig. <&wkey; 402.]
    8. Criminal Law <&wkey;1137 — Appeal—Review —Invited Error.
    Though the court opened the door wide in admitting evidence of the loss of papers as a basis for secondary evidence of their contents, accused could not complain thereof, where the broadness of the inquiry was due to his own insistence that the evidence was insufficient to permit secondary evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3007-3010; Dec. Dig. &wkey;> 1137.]
    9. Criminal Law &wkey;>402 — Evidence — Best and Secondary Evidence.
    When a written instrument is shown to be in the possession of a defendant and he declines to produce it upon notice, secondary evidence of its contents is admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 887, 888; Dec. Dig. <&wkey; 402.]
    10. Criminal Law <&wkey;663 — Evidence—Possession by Court.
    Where accused passed a forged instrument by offering it in evidence in the justice court, and the district court obtained possession thereof by a subpoena duces tecum, that court did not err, on a trial for passing such instrument, in refusing to instruct its officers to return the instrument to accused, as legal possession had been obtained of it, and the court had a right to hold it until the case was disposed of.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1602; Dec. Dig. <&wkey;663.]
    11. Forgery <&wkey;37 — Evidence—Admissibility.
    Accused gave a check March 13, 1912, and was subsequently charged with altering it after its payment by the bank by changing its date to March 13; 1914, and inserting a provision that it was to be applied on a particular note, and with passing it as so altered. Held1, that it was permissible to show by the officers of the bank that such a check was paid on March 22, 1912, and that no- such transaction had taken place at any time from March 13, 1914, to March 22, 1914.
    [Ed. Note. — For other cases, see Forgery, Cent. Dig. §§ 105-107, 111; Dec. Dig. &wkey;37.]
    12.. Criminal Law <&wkey;338 — Evidence — Admissibility.
    Where, on a trial for passing a forged check, accused, questioned the accuracy of the loose-leaf ledger system of bookkeeping employed by the bank upon which the check was drawn, it was permissible to show by the bank’s officers that it was a correct system and in general use. .
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 752, 753, 755, 756, 787, 788, 801, 855; Dec. Dig. <§¿=>338.]
    13. Criminal Law <&wkey;729 — Misconduct of Prosecuting Counsel.
    On a trial for forgery and passing a forged instrument, by introducing it in evidence in the justice court, a remark of the district attorney that accused committed perjury in the justice court was not ground for reversal, where upon objection he withdrew the remark and stated to the jury that he meant forgery.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1692; Dee. Dig. &wkey;>729.]
    14. Criminal Law <&wkey;655¡— Conduct oe Trial — Intermissions — Permitting Proceedings in Other Cases.
    During an intermission in a criminal trial, it was not error for the court to permit a special judge in another case to take an oath and enter an order in such case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1520-1523, 1527, 1535; Dec. Dig. <&wkey;G55J
    15. Criminal Law <&wkey;829 — Instructions Covered by Those Given.
    Where the court’s charge was full, explicit, and properly presented the law of the case, it was not necessary to give requested charges.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <&wkey;>829.]
    Davidson, J., dissenting.
    Appeal from District Court, Armstrong County; Hugh L. Umphres, Judge.
    H. W. Bunker was convicted of passing a forged instrument, and he appeals.
    Affirmed.
    F. J. Ford, of Decatur, A. A. Lumpkin, of Amarillo, and W. A. Wilson, of Claude, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted, under the fourth count in the indictment, charging passing a forged instrument.

One of the main contentions of appellant is that the instrument alleged cannot be made the predicate for a charge of forgery, and, owing to his insistence, we will discuss the question at length and the authorities cited by him. The evidence would authorize a finding that appellant purchased from Mr. Bishop in March, 1912, several head of cattle, and on the 13th day of March, 1912, gave him a check for $50 in payment of the cattle, the said check reading;

“Guaranty Fund Bank.
“Claude, Texas, 3-13 1912.
“First State Bank
“Pay to the order of S. Bishop $50.00
‘ ‘Fifty no/100.Dollars.
“[Signed] H. W. Bunker.”

On the 22d day of March, 1912, the check being payable to the order of S. Bishop, he indorsed on the back thereof his name, Stephen Bishop, and presented it to the bank for. payment, on that day, and it was paid on that date, as shown by the testimony of the officers of the bank, as well as the testimony of Mr. Bishop, and the bank indorsed thereon “Paid” with its stamp, used for that purpose. In May, 1912, after the above transaction, Mr. Bishop had a public sale of some property, and appellant became a purchaser of a portion of the property, and on May 25, 1912, gave to Mr. Bishop his promissory note for the sum of $190.80, due six months after date, bearing interest at the rate of 10 per cent., and providing for attorney’s fees in case of suit. It is thus seen that this note was given two months after the check in payment for the cattle had been given and paid. All of this note not being paid, Mr. Bishop brought suit on the note in 1914, and the case came on to he tried on the 5th day of October, 1914. The pleadings were oral in the justice court, and it is shown that appel-laht, by his attorney, pleaded as an offset that he had paid Mr. Bishop on the note $50 on March 13, 1914, and said he had paid it to him at the depot in Washburn by check on the Eirst State Bank and during the trial introduced as evidence in support of this plea, a check reading as follows:

“Guaranty State Bank.
“Claude, Texas, 3-13 1914.
“First State Bank
“Pay to the order of S. Bishop $50.00 .Fifty no/100.Dollars.
“This check is to be applied on auction note.
“[Signed] - H. W. Bunker”

—and which check, so introduced, had indorsed thereon the name of Stephen Bishop, and was marked paid by the bank.

The contention of the state is that appellant had gotten the check from the bank he had given Mr. Bishop in March, 1912, and had altered it so as to make it read that he had given the cheek to Mr. Bishop March 13, 1914, by changing the “2” to a “4,” and placed therein, .“This check is to be applied on auction note,” which note had been given two months after the check for the cattle had been given in March, 1912. Appellant’s contention is that if this be true, it is not such an instrument that forgery can be based thereon, nor would he be guilty of any offense in passing same. Appellant’s able attorneys have briefed the question, and present a number of authorities. The first case he refers us to is the case of Reed v. State, 28 Ind. 396, in which it was held that the certificate, so far as it purports to be an instrument entitling Allen to the bounty named therein, was merely void — there was no law authorizing the giving of bounties by county commissioners, and says:-

“Void things are no things. * * * A writing void on its face is a familiar instance of paper in respect to which forgery cannot be predicated without the averment of some extrinsic circumstances showing how it may become pernicious.”

No one would question this statement of the law, but it has no application to this case. The instrument alleged in this case, if-true, would not be void, but a valid receipt for $50 on the amount due on the auction note, and extrinsic averments are stated in the instrument which would show that fact.

The next ease we are referred to is the case of People v. Cady, 6 Hill (N. Y.) 490. It has no application to the character of case as made by the evidence in this case, nor the allegations contained in the indictment. The writ was in the nature of a writ of inquiry issued by the court, returnable on a given date. The attorney receiving it changed the return which would show it had not been served in time. It was held such act in no way affected property rights and was not an offense under the statute of New York. Nearly every state, if not every state, has laws defining forgery, and especially is this true in this state, where the law provides there shall be no penal offense except as prescribed in the Penal Code (article 3, P. C.). Our Code provides he is guilty of forgery who, without lawful authority, and with intent to injure and defraud, shall alter an instrument in writing then already in existence, by whomsoever made, in such manner that the alteration would, if legally made, have discharged or defeated any pecuniary obligation. Pen. Code, art. 924. The alterations herein alleged to have been made, certainly if true, would have defeated a recovery on the note to the extent of $50.

We are also cited by appellant to the case of People v. Fitch, another New York case, reported in 1 Wend. (N. Y.) 198, 19 Am. Dee. 478. In that case one man gave another an order for a cow, dated November 4th. The-date was changed to November 14th the legal effect of the order was in no way affected by the change, nor the rights of the parties in any way affected thereby. The court, in. passing on the case, however, holds:

“Is this forgery? Forgery has often been defined by learned jurists. By Mr. Justice Blackstone: ‘Forgery is the fraudulent making or alteration of a writing to the prejudice of another’s right.’ By Buller, Justice, ‘The making of' a false instrument with intent to deceive.’ By Baron Eyre, ‘A false signature with intent to. deceive.’ Again: ‘The false making of an instrument which purports, on the face of it, to be-good and valid for the purposes for which it was created, with a design to defraud.’ By-Grose, Justice, ‘The false making of a note- or other instrument with intent to defraud.’ By Mr. East, ‘The false making of any written, instrument for the purpose of fraud or deceit.’ 2 East’s P. C. 852, 853. By Mr. Ohitty, ‘The-false making or alteration of such writings as, either at common law or by statute, are its objects, with intent to defraud another.’ Ohitty’sOr. L. 1022. This writer notices a distinction between forgery and fraud; that the latter must actually take effect, while the former is complete, though no one is actually injured if the tendency and intent to defraud be manifest. As-to- what false making is necessary to constitute the offense, it has been held that a party may. make a false deed in his own name, by antedating, for instance, so as to prejudice a prior grantee. So by indorsing a bill of exchange in his own name when he is not the real payee., 2 East’s P. C. 855; 4 T. R. 28. On this principle, we held Peacock guilty of forgery for in dorsing the permit for the delivery of a quantity of coal, with his own name, knowing that he was not the real consignee of the coal, though of the same name. People v. Peacock, 6 Cow. (N. Y.) 72. So making a fraudulent alteration or erasure in any material part of a true instrument, or any alteration which gives it a new operation, as by altering the date of a bill of exchange after acceptance, whereby the payment was accelerated. 4 T. R. 320; 3 Chitty’s Cr. L. 1038; 2 East’s P. C. 855.”

That case, instead of being an authority in favor of the invalidity of the instrument here relied upon, holds that “making a fraudulent alteration or erasure in any material part of a true instrument, or any alteration which gives it a new operation,” is forgery. In this case, by the alterations alleged, appellant gave it a new operation, a legal receipt, against a note that had not been executed when the original check was given.

The case of Clarke v. State, 8 Ohio St 630, also referred to by appellant, does not hold that the instrument was not one subject to forgery, but that extrinsic averments should have been made showing wherein it could be used to defraud. The appellant in that case was charged with altering a tax receipt showing he had paid $7 more in taxes than he had paid, with intent to injure and defraud Nathan Lupton, yet, as it was Nathan Lupton’s receipt issued to him by the collector of taxes, before such alteration could be made the basis of forgery, it was held the indictment must contain averments showing in what way appellant could have injured or defrauded Lupton in altering the receipt issued to him (Lupton). The indictment in this case contains all such necessary aver-ments.

In the Tennessee case referred to by appellant (State v. Corley, 4 Baxt. [Tenn.] 410) it appears that Corley had been sued and judgment obtained against him, in which case King was entitled to a witness fee. Corley indorsed on the docket, “I retain King’s witness as attorney.” Held, that without extrinsic averments such an entry could not be the basis of forgery; the judgment debtor merely asserting that he retained the witness under a claim of right.

We are also referred to a Kentucky case by appellant (Com. v. Butler [Ky.] 37 S. W. 840), in which it was held that an indictment did not charge forgery wherein it was only alleged that he changed a receipt issued to him, from 60 cents to 90 cents to defraud J. P. Stephens of 30 cents. We take it, from reading the opinion, it is only held that the necessary allegations were not contained in the indictment to base forgery on the instrument. If it is contended that the Kentucky court intended to hold that it was not such an instrument that forgery could be based thereon, the statute in that state must be different from our own statute, for in the case of Fonville' v. State, 17 Tex. App. 368, this identical question was before this court, and Judge Hurt held that under the Penal Code of .this state forgery could be predicated on such a receipt so altered, and affirmed the judgment of the trial court sentencing Fonville to two years in the penitentiary.

The Minnesota ease, also referred to by appellant, has no application to this case (State v. Monnier, 8 Minn. 212 [Gil. 182]), it being simply held that the “indictment did not charge sufficient facts to constitute the crime of forgery,” not that forgery cotild not be based on the indictment alleged, if explanatory facts had been alleged.

These are all the cases cited us by appellant, and none of them sustain his contention that the alterations alleged could not and would not form the basis for forgery, where the indictment contains the necessary explanatory averments to show that if the instrument was a true instrument, it would in fact have diminished a pecuniary obligation, and defeated a recovery on the note to the extent of $50. On the other hand, we think all the authorities hold, under a statute like ours, that forgery can be based upon such an instrument. Mr. Bouvier, in his Law Dictionary, defines forgery as:

“The fraudulent making or alteration of a writing to the prejudice of another’s right; the endeavor to give an appearance of truth to a mere deceit and falsity; any fraudulent alteration, whereby a new operation is given to an instrument constitutes forgery” (citing 2 Russell on Crimes, § 319).

The Standard Enc. of Prac., title Forgery, says:

“A definition, frequently quoted, defines forgery as ‘the fraudulent making or altering of any writing to the prejudice of another’s rights.’ A more satisfactory definition, however, and one that has met the approval of many courts, is the following: ‘At common law, forgery is the false making or material altering, with intent to defraud, of any writing which, if genuine, might apparently be of legal efficacy, or the foundation of a legal liability.’ ”

In Words and Phrases, vol. 3, we find the following definitions and citation of authorities:

“Forgery is the false making of a paper. But it need not be the entire fabrication thereof. Any addition to a genuine paper, or any alteration of it in an essential particular, so as to give it a different meaning, is a forgery. United States v. Osgood, 27 Fed. Cas. 362, 363.
“It is forgery to fraudulently alter any part of an instrument when the alteration is capable of working injury to another. Thus it is forgery to alter the dates, names, or any other material parts of an instrument when the alteration gives it a new operation. It is no defense to a forgery committed by alterations in an instrument that there was no special attempt to conceal such alterations, and that they were plain to he seen; the rule being that if a signed writing, which is forged, be intended to be taken as true, and might be so taken by ordinary persons, it is sufficient. Rohr v. State, 60 N. J. Law, 576, 38 Atl. 673, 674; Commonwealth v. Hide, 94 Ky. 517, 23 S. W. 195, 196; Murphy v. State, 118 Ala. 137, 23 South. 719.
“Forgery may consist in making and issuing, with fraudulent intent, etc.,, a paper or writing", false or forged, either in its entirety or in some significant or important portion or part of it. Thus the changing of the figure ‘1’ to ‘5,’ so as to make the number ‘107’ read ‘507’ is sufficient to constitute forgery. State v. Wingard, 40 La. Ann. 733, 5 South. 54, 55.
“Forgery is the false making of an instrument. The illegal making may be an original fabrication, or it may be by merely changing a thing already made into another thing. Hence, though every forgery does not include every altering, yet every altering includes a forgery. In either case there must be a thing, an instrument, known to the law, and to which it gives legal effect when the act is completed. If the prisoner alter a note, it must still be a note or some other legal instrument. Haynes v. State, 15 Ohio St. 455, 457.
“2 Rev. St. p. 673, enacts that every person who, with intent to injure or defraud, shall falsely make, alter, forge, or counterfeit any instrument or writing being or purporting to be the act of another by which any pecuniary demand or obligation shall be or purport to be created, increased, discharged, or diminished, or by which any rights shall be or purport to be transferred, conveyed, discharged, or diminished, shall be guilty of forgery. Held, that forgery may be committed under the statute either by the entire false making of an instrument or by making a material alteration or insertion in or addition to the true instrument, although but in a letter or figure, or by misapplying a genuine signature; as, by writing over it an instrument for which it was never intended. People v. Graham, 6 Parker, Cr. N. Y. 135, 139.
“The holder of certain county warrants brought suit thereon, and recovered judgment against the county, filing the warrants with the justice. The warrants were indorsed payable specially to such holder or order, and when judgment was recovered the agent of the holder wrote across the face the word ‘Judgment,’ with the date, thereof. The defendant obtained possession of such warrants, erased such indorsement and writing across the face, and then negotiated and sold the warrants, and was indicted for having forged the same. It was assigned as error that the offense charged was not ‘forgery,’ but rather the obtaining money by false pretense or token. Forgery, as defined in the Code, ‘is the fraudulent making or altering of any writing to the prejudice of another’s rights.’ This is the common-law definition of the offense, and would cover any form of the crime recognized by that law which treated forgery as a common-law cheat, or attempt to cheat. Any alteration of a written instrument whereby its legal effect is varied will constitute the offense, and the indictment may, in such case, regard the offense as a forgery of the entire instrument, for in law it is such. And the erasure of the indorsement on the back of the warrants constituted forgery of the warrants. Garner v. State, 73 Tenn. (5 Lea) 213, 217, 218.”

In our own state, under our statute, it has been held that ordinarily a fair test of whether an instrument is the subject of forgery is, Would the holder of same, if the same were time, be enabled to maintain or defeat a civil suit by such instrument? Scott v. State, 40 Tex. Cr. R. 107, 48 S. W. 523; Daud v. State, 34 Tex. Cr. R. 464, 31 S. W. 376; Gray v. State, 44 Tex. Cr. R. 478, 72 S. W. 858. Not only could'the instrument relied on in this case as the basis for forgery be used to defeat a civil suit if true, yet the facts show that the appellant did use it for that specific purpose. Again, this court has held:

“If an instrument 'is not void, but merely obscure or of doubtful interpretation, it may be made the,subject of forgery by innuendo aver-ments, showing what ifc meant by the doubtful terms, or by such extrinsic averments as show it to be valid if genuine for the purpose intended.” Forcey v. State, 60 Tex. Cr. R. 206, 131 S. W. 585, 32 L. R. A. (N. S.) 327; Allen v. State, 44 Tex. Cr. R. 63, 68 S. W. 2S6, 300 Am. St. Rep. 839; Scott v. State, 40 Tex. Cr. R. 106, 48 S. W. 523; Head v. State, 72 S. W. 394; Davis v. State, 69 S. W. 73, and cases cited.

We have examined the authorities, not only in this state, but other states, and are of the opinion that by the alterations and changes in the instrument, it was intended to give it a new life and a new use, and if true, it could be, as it was, pleaded in bar of a recovery on the auction note, and, if true, it would have defeated a recovery on said note to the extent of $50, the alteration having been made after Mr. Bishop had indorsed it; and it was intended, by such alterations and changes, to make, by virtue of Bishop’s signature, a valid receipt for $50, and, if true, it would in law be a valid receipt for said sum.

The court, in submitting the fourth count in the indictment, charged the jury:

“If you find and believe from the evidence beyond a reasonable doubt that a check in writing, as set out in the fourth count of the indictment, was forged, and that the defendant in the county of Armstrong and state of- Texas, on or about the 5th day of October, 1914, as alleged, knowing the said check to be a forged instrument, if it was a forged instrument and if accused knew it to be forged, in the manner and under the circumstances set forth in said fourth count of said indictment, did, without lawful authority and with intent to injure and defraud said Stephen Bishop, fraudulently and knowingly pass and introduce the said check so altered, if it was altered, as true and as evidence in behalf of accused in and to the justice court of precinct No. 2 of Armstrong county, Tex., in the case of Stephen Bishop v. H. W. Bunker, No. 346, in order to receive a credit of $50 in the manner and under the circumstances set forth and alleged in said fourth count of the indictment, then you will find the defendant guilty and assess his punishment at confinement in the penitentiary for any term of years not less than two nor-more than five years.”

Appellant also insisted the indictment charged appellant with both forging and passing a forged instrument. In the third count appellant was charged with - forging the instrument, and the jury was so instructed, and it was the intention of the pleader to charge only a passing of the instrument in the fourth count, and the court so instructed the jury as hereinbefore shown. If there are in the count allegations that appellant forged the instrument as well as passed it, such allegations could be held as surplus-age and be eliminated, and the indictment still charge a passing of a forged instrument. The pleader was merely setting forth the facts which showed it to be a forged instrument that was alleged to have been passed,"' and under the fourth count appellant could not have been-tried for forgery, but only for passing the instrument. The indictment is valid, and the court- did not err in overruling the motion to quash it. Barnwell v. State, 1 Tex. App. 747; Boles v. State, 13 Tex. App. 656; Miller v. State, 16 Tex. App. 421; Reagan v. State, 28 Tex. App. 231, 12 S. W. 601, 19 Am. St Rep. 833; Mason v. State, 29 Tex. App. 29, 14 S. W. 71; Crawford v. State, 31 Tex. Cr. R. 51, 19 S. W. 766; Dill v. State, 35 Tex. Cr. R. 240, 33 S. W. 126, 60 Am. St. Rep. 37; Carr v. State, 36 Tex. Cr. R. 3, 34 S. W. 949; Wadkins v. State, 58 Tex. Cr. R. 110, 124 S. W. 959, 137 Am. St. Rep. 922, 21 Ann. Cas. 556.

The nest assignment in appellant’s brief is that the court erred in not giving peremptory instructions. As the evidence for the state would support the verdict, there was no error in refusing such instructions.

The indictment charged that:

“Then and there in open session, in and during the trial of a civil case then pending in said justice court, styled: ‘Stephen Bishop y. H. W. Bunker, No. 346,’ in which said suit and trial thereof the said Stephen Bishop, as plaintiff, had sued and was suing the said H. W. Bunker as defendant, for a balance of about $77 then due and past due and unpaid as principal, interest, and attorney’s fees, upon the said note hereinbefore described; and when the said H. W. Bunker so passed and introduced the said cheek as true as aforesaid, to the said justice court as aforesaid, he, the said H. W. Bunker, did then and there willfully and fraudulently and knowingly intend that the said cheek should purport and appear to be, and should be admitted in evidence in said trial of the said case, in favor of himself and against the said Stephen Bishop, as evidence of the payment by the said H. W. Bunker to the said Stephen Bishop of the sum of $50 as a part of and upon the said note and as evidence of the receipt by the said Stephen Bishop from the said H. W. Bunker of the said sum of $50 as a part payment of and upon the said note, and in fact the said check was so admitted and received in evidence in said trial of said case in said justice court for the said purposes, when the said check was false and forged by alteration in the particular hereinbefore alleged, and the said H. W. Bunker then and there well knew same was false and forged, as hereinbe-fore alleged, when he so passed and introduced the same as evidence as aforesaid; and in so altering and passing the said check, as aforesaid, the said H. W. Bunker did then and there and thereby willfully and fraudulently intend that the said check, so made, indorsed, stamped, and altered as aforesaid, should diminish, discharge, and defeat the pecuniary obligation of the said H. W. Bunker which existed by reason of the execution and delivery of the said note to the amount of $50, and the said alteration and passing of the said check was done and made in such manner as that the said chock, so altered as aforesaid (if the said alteration had been legally made), would have diminished, discharged, and defeated the pecuniary obligation of the said H. W. Bunker which existed and was created by reason of the execution and delivery of' the said note as aforesaid, to the amount of $50.”

The contention first made is that there is no such court known as the “justice court.” The court held by the j.ustice of the peace under authority of the Constitution and laws of this state, is known and generally called the “justice court”; no other court is so called, and it was a sufficient designation of the court.

It is also contended that the evidence shows that appellant handed the check to his attorney and he, the attorney, offered it in evidence, and it would be the attorney passing it, if any one was guilty. Article 77 of the Penal Code provides that if one cause an innocent agent to commit an offense, he becomes the principal. There is no evidence that the attorney knew, or even suspicioned, the check was forged when he offered it in evidence, while the evidence amply shows that appellant knew that fact when he handed it to his attorney; that appellant took the stand and testified to the genuineness of the check, and that he had given it to Mr. Bishop in 1914, at the depot. It was the act of appellant and not the attorney. Ellis v. State, 22 S. W. 678.

It is also contended that as the indictment charged that the First State Bank was incorporated, it was necessary to prove that allegation. This court has held adversely to appellant’s contention. White v. State, 61 Tex. Cr. R. 498, 135 S. W. 563. The indictment did not allege that the instrument was passed on the corporation, but on another. Reeseman v. State, 59 Tex. Cr. R. 430, 128 S. W. 1126, and cases cited in Davis v. State, 70 Tex. Cr. R. 253, 156 S. W. 1171.

The only assignment in the brief is that the court erred in admitting evidence of the loss of the check and other papers, and evidence that defendant had been tried in another case. Appellant in his brief did not further specify, but this we suppose would call in review the various bills of exceptions. Under the circumstances, the fact that appellant had been tried in another case (the result not being shown) was admitted in evidence would not present error. The record shows that at the close of the former trial, the state requested the court to send out with the jury the check, note, and other justice court papers. Appellant opposed this being done, and his objection was sustained. The judge then took all the justice court papers, including the note and check on his desk.- Upon announcement for trial in this case, the papers could not be found. Appellant objected to secondary evidence of the contents of the note and check, and it then became incumbent upon the state to show the location of the papers the last time they were seen, the search made for said papers, and the loss of the papers to render secondary evidence of the contents admissible; and, when it had shown this, then secondary evidence of the contents of the papers became admissible, and the court did not err in so holding. In Haun v. State, 13 Tex. App. 383, in which the court was discussing the loss of the note in a forgery case, Judge Willson, speaking for the court, held:

■ “In treating upon this subject Mr. Greenleaf says: ‘If the instrument is lost, the party is required to give some evidence that such a paper once existed, though slight evidence is sufficient for this purpose, and that a bona fide and diligent search has been unsuccessfully made for it in the place where it was most likely to be found, if the nature of the case admits such proof. * * * What degree of diligence in the search is necessary is not easy to define, as each case depends much on its peculiar circumstances. * * * But it seems that in general the party is expected to show that he has in good faith exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the case would naturally suggest, and which were accessible to him.’ 1 Greehl. Ev. § 558. If the proof establishes a reasonable presumption of the loss of the instrument, it is held to be sufficient to admit secondary evidence of it. Cheatham v. Riddle, 8 Tex. 162. And the question as to whether or not a basis has been made to let in secondary evidence is a question addressed to the discretion of the trial judge, which the court will not revise, except in a case of manifest error. Mays v. Moore, 13 Tex. 85.”

It was under such circumstances the fact that appellant had been tried in another case was elicited, and under the rule, requiring that the lost paper be traced to its last custodian, the evidence to show the character of search made therefor, that it could not be found, and all evidence tending to show those facts became admissible. The disposition of it, if known, may also be shown. The court opened the door rather wide in admitting evidence to show the loss of those papera, but, as appellant was contesting the admissibility of secondary evidence of the contents of the instruments, his objections- being that the evidence as given was insufficient to permit secondary evidence, the broadness of the inquiry was due to such insistence, and he will not now be heard to complain. All the evidence admitted went to show that the clerk was keeping the papers; had delivered them to the judge when the question of whether the jury in the former case would be permitted to take them with them was being discussed, the disposition made of the papers by the judge, their loss and the effort and search made for them, and the probable disposition of the papers, placing them beyond the reach of the court — in fact, in possession of the defendant. It has always been held that when a written instrument is shown to be in possession of a defendant, if he declines to produce it upon notice to do so, then secondary evidence of its contents is admissible. This disposes of appellant’s bills of exceptions Nos. 3, 4, 5, 8, 9, 11, 14, 15, 16, 18, and 19 as they all relate to the introduction of the secondary evidence of the contents of the check and note and proof of the loss and search made for such papers.

His first bill of exceptions relates solely to the question that the instrument upon which the charge of forgery is predicated is not such an instrument upon which forgery can be charged. We have already discussed this question. In the second bill, it is shown that at the beginning of the trial, appellant presented a written motion requesting the court to instruct the officers to return to him the check in question, alleging that it was his property. As appellant had introduced the check in evidence in the justice court, filed it with the papers in that cause, and the district court had obtained possession of it from the justice of the peace by a subpoena duces tecum, there was no error in the court refusing to instruct the officers to return the check. Legal possession had been obtained of it, and the court had the right to hold it until the case was disposed of.

Bills 6, 7, 12, 13, 20, 21, 24, and 25 are not in the record, and we must presume they were not approved.

It was permissible to be shown by the officers of the bank that a check for $50 from appellant to Stephen Bishop had been paid, when the memorandum was introduced so showing, on March 22, 1912, and also permissible to show that no such transaction had taken place at any time from March 13, 1914, to March 22, 1914, inclusive, and bill No. 16 presents no error. When appellant questioned the accuracy of the “loose-leaf ledger system” of bookkeeping, it was permissible for the state to show by the bank officers that it was a correct system and in general use; and bill No. 17 presents no error. This disposes of all the bills relating to the introduction of testimony.

In bills Nos. 22, 23, and 26 appellant complains of the remarks of the prosecuting officers. In the first bill it is shown that the district attorney had said that the appellant had committed “perjury” in the justice court. When the remark was objected to, it was withdrawn, and the district attorney stated to the jury he meant forgery. The other remarks were legitimate, and were not even an indirect reference to defendant’s failure to testify.

The fact that the court permitted a special judge in another case to take the oath and enter an order in such case during an intermission in the trial of this case presents no error.

We have carefully reviewed the exceptions to the charge of the court as given, and such exceptions present no error. The court’s charge was full, explicit, and properly presented the law of the case as applicable to passing a forged instrument, and under such circumstances it was not necessary to give either of the special charges requested.

The judgment is affirmed.

DAVIDSON, J. There are several reversible errors in the record.

       ®=»For'other bases see same topic and KEY-NUMBEB in all Key-Numbered Digests and Indexes

      <S=»For other cases see same topic and KEY-NUMBER in all'Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, P. J. DAVIDSON, J. PRENDERGAST, P. J. DAVIDSON, J.

license: Public Domain

text:
    STACY v. STATE.
    (No. 3425.)
    (Court of Criminal Appeals of Texas.
    April 21, 1915.
    On Motion for Rehearing, June 2, 1915.)
    1. Criminal Law <@=>586 — Continuance — Discretion of Couet.
    Accused is not entitled as a matter of right to a continuance, but the truth of his application therefor, as well as the merits of the grounds and its sufficiency, is addressed to the sound discretion of the court.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1311; Dec. Dig. @=586.)
    2. Criminal Law @=5598 — Continuance — Diligence.
    To entitle accused to a continuance for an absent witness, he must affirmatively show due diligence to procure the attendance of such witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. @= 598.)
    3. Criminal Law @=598 — Continuance — Absent Witness — Diligence.
    A continuance for absence of a witness testifying at the examining trial held on May 8th is properly denied for lack of diligence, where accused was bound over for murder an.d denied bail, and no application for process for such witness was made until October 19th, seven days before the date set for the trial of the indictment found against him, his attorneys knowing the facts and residing near the witness, and that the attorneys claimed that they did not know that the case was set for trial would be no excuse.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-134Í; Dec. Dig. @= 598.)
    4. Criminal Law @=>598 — Continuance — Diligence — Issuance oe Process by State.
    In view of Pen. Code 1911, art. 1577, forbidding the issuance of more than one sub-pcdna for a witness and giving defendant the benefit of the action of the state in “serving” process on a witness, that defendant failed to look up a witness, for the absence of whom a continuance was asked, because the state had “issued” a subpoena, would not excuse lack of diligence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. @= 598.]
    5. Criminal Law @=603 — Continuance — Application.
    An application for a continuance must state the residence of the witness, and, when it states that a witness is temporarily absent, it should state how long he has been so absent, and when he left the county of his residence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1348-1361; Dec. Dig. @= 603.)
    6. Criminal Law @=>597 — Continuance — Absent Witness — Truth of Testimony.
    An application for a continuance is properly overruled, when, in connection with the evidence adduced on the trial, it is apparent that the proposed absent testimony would not probably be true.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1331, 1332; Dec. Dig. @=> 597.)
    7. Criminal Law @=>595, 917 — Appeal—'Review — Discretion — Continuance — New Trial.
    The court on appeal will not reverse a judgment refusing a continuance and the overruling of a motion for new trial based upon the application for a continuance, unless it appears from the evidence adduced at the trial that the proposed absent testimony was relevant, material, and probably true.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327, 2161, 2162; Dec. Dig. @=>595, 917.)
    8. Criminal Law @=>597 — Continuance — More Favorable Judgment.
    A judgment refusing a continuance for absence of a witness will not be reversed unless it is probable that, if the absent testimony had been before the jury, a verdict more favorable to defendant would have resulted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1331, 1332; Dec. Dig. @=> 597.)
    9. Witnesses @=266 — Wife as Witness — Cross-Examination.
    In a prosecution for murder, defendant’s wife testifying to the identity of a knife found near deceased’s body, and as to a threat made by deceased, may be cross-examined in reference thereto.'
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 907-912, 914-920, 922; Dec. Dig. @=>266.)
    On Motion for Rehearing.
    10. Homicide @=158, 166 — Evidence — Threats — Motive.
    In a prosecution for murder, evidence that accused made love to deceased’s fiancée and said that he would kill her lover, and that he asked another whether the two were going to be married and made a bet that they would not, is admissible to show motive, malice, intent, and threats.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 293-296, 320-331; Dec. Dig. @= 158, 166.)
    11. Homicide @=300 — Instructions — Self-Defense.
    Where, in a prosecution for murder, the evidence shows that, at the time of the killing, a brother was not aiding or encouraging deceased in any attack upon accused, though he had theretofore been cursing accused for a grievance, an instruction as to his right of ■self-defense as against such brother was unnecessary.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dee. Dig. @=>300.)
    12. Homicide @=109 — Self-Defense — Aiders and Abettors.
    Where an attack is made upon an accused by two persons, they both being present, or by one person when' the other is. present, in any way aiding or encouraging the attack, accused can defend himself against both as well as either.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 138, 139; Dec. Dig. @=109.)
    Davidson, J., dissenting.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    Lee Stacy was convicted of murder, and he appeals.
    Affirmed.
    D. Moore, of Aquilla, Morrow & Morrow, of Hillsboro, and Taylor & Forrester, of Waco, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the murder of his 17 year old stepson- — the son of his wife — and his punishment assessed at 99 years in the penitentiary.

These persons and many others were attending a dance. The killing occurred about midnight May 7,1914. It was a bright, cloudless, moonlight night, with the moon about full. The parties were out in the open a short distance from the house, with quite a number of persons out there in sight and in hearing. The state introduced three eyewitnesses. Appellant introduced no eyewitness ■except himself. His defense was self-defense. The testimony by the state makes a •clear case of murder and disproved appellant’s defense. His testimony alone would tend to show self-defense. We see no necessity of reciting the evidence.

Appellant’s main contention seems to be the ■claimed error of the court in overruling his motions for a continuance for the absence of Hum Hardin, which we will first discuss.

In order to properly discuss this question, we will state the law and the evidence applicable thereto. In doing this, no reflection is intended upon appellant or any of his attorneys. We merely discuss the question and .the evidence as developed by the record.

The record herein and of this court show that the justice of the peace at Aquilla, in Hill county, near where the homicide oecur-.red, the next day thereafter, held an examining trial upon which he denied appellant •bail and properly committed him to the custody of the sheriff of the county; that several days thereafter he applied to the district judge for a wilt of habeas corpus, which was •granted, and upon hearing by the district judge he on June 1,1914, denied bail and likewise properly remanded appellant to the custody of the sheriff. Appellant appealed from ■this judgment of the district judge to this court, which affirmed the judgment (168 S. W. 1199), all thereby showing that it was a murder case in which the death penalty might likely be inflicted, of which, of course, appellant and all of his attorneys had knowledge. Appellant has been confined in jail at Hills-boro, the county seat of Hill county, continuously from the time the justice of the peace first denied him ball. The grand jury of Hill •county duly indicted him September 17, 1914, at the term of court for said county which began on the first Monday in September. He was duly served with a copy of the indictment on September 23d. In due time, as was •customary, the judge set the criminal docket. •On September 25th, the judge set this case for trial for October 19th and ordered a special venire for that date. The special venire must have been for quite a number of veniremen.

Two of appellant’s attorneys, Messrs. Morrow & Morrow, lived at Hillsboro. Judge Morrow of this firm, however, was at Austin in attendance on the State Senate, of which he was a member, until October 15, 1914. Two others, Messrs. Taylor & Forrester, at Waco. Mr. Forrester said they relied on Mr. Moore to procure process for witnesses. And the other Mr. Moore lived at Aquilla, some 16 or 18 miles southwest from Hillsboro in Hill county, near which the homicide occurred. Appellant at no time personally applied for any process whatever for any witness. The first time that any of appellant’s attor-1 neys applied for process was on October 14, 1914 — 19 days after the case had been set for trial and the special venire ordered, and only 4 days, exclusive of .the day on which the process was issued and the case set for trial, before the case was to be tried.

It is the settled law of this state, both by statute and all the decisions, that an accused is not entitled as a matter of right to a continuance; that the truth of his application therefor, as well as the merits of the ground and its sufficiency, is addressed to the sound discretion of the trial court. It is also statutory, as well as in accordance with the decisions, that before an accused can get a continuance he must affirmatively show that he has used due diligence to procure the attendance of his claimed absent witness.

Judge White says:

“Diligence in securing the attendance of a witness is in the highest degree essential; and the continuance should invariably be refused when the want of diligence amounts to pure negligence. Greenwood v. State, 9 Tex. App. 638.” Section 600, White’s Ann. C. G. P.
“Continuance is properly refused always where there is a want of diligence. O’Neal v. State, 14 Tex. App. 582; Hart v. State, 14 Tex. App. 657; Childers v. State, 16 Tex. App. 524; Hawkins v. State, 17 Tex. App. 593 [50 Am. Rep. 129]; Timbrook v. State, 18 Tex. App. 1; Barrett v. State, 18 Tex. App. 64; Bond v. State, 20 Tex. App. 421; Moseley v. State, 25 Tex. App. 515 [8 S. W. 652]; Stegall v. State, 32 Tex. Cr. R. 100 [22 S. W. 146, 40 Am. St. Rep. 761]; Underwood v. State, 38 Tex. Cr. R. 193 [41 S. W. 618]; Henry v. State, 38 Tex. Cr. R. 306 [42 S. W. 559].”

This court, in Skipworth v. State, 8 Tex. App. 139, said:

“The law requires of the defendant a rigid compliance with the exact terms prescribed for such applications, and if there is a lack of diligence, apparent from the application or otherwise; * * * its mandate is inexorable and the trial must proceed.”

In Walker v. State, 13 Tex. App. 647, 44 Am. Rep. 716, note, this court said:

“We know of no rule of law which requires the state to show a want of diligence in opposition to a continuance. It devolves upon the defendant to show, affirmatively and distinctly, that he has used all the diligence to obtain his witness required by law.”

In Long v. State, 17 Tex. App. 129, this court said:

“The onus is upon the defendant to establish the exercise of diligence in support of an application for a continuance. * * * The burden is upon the party seeking a continuance to show himself entitled to it by definite, exact and certain averments.” '

In Massie v. State, 30 Tex. App. 67, 16 S. W. 770, this court said:

“Neither will this court nor the trial court supply by inference and presumption allegations not contained in an application for a continuance which should be stated therein. The application must be complete within, and of itself in order to require this court to say it was erroneously refused. Presumption, when indulged, will and must be in favor of the rulings of the court in reference to the matter complained of, and not against Same.”

The record herein shows that said witness Lum Hardin .testified in said examining trial on May 8th. A statement of his testimony was then made in wilting, signed and sworn to by him. Appellant and some, if not all, of his attorneys, knew this all the time.

Appellant made his first application for a continuance on October 19th when the case was called for trial. Up to that time, his application and the record fail to show that he, or any of his attorneys, used any effort whatever to ascertain the whereabouts of said witness. Inferentially, at least, the record and said application indicate that neither appellant nor any of his attorneys made any effort whatever to locate said witness, or to aid or direct the officers where to find him. The record does not inform us who said witness Hardin is—whether a young or an old man, married or single-, permanently located or a transient. It simply shows that at the time of the homicide he resided in the neighborhood where it occurred. It does not show his business, occupation, or avocation.

The record and application show that for the first time, on October 14th, Mr. Moore, one of appellant’s attorneys, applied to the clerk at that late date for a subpoena for said Hardin, and other witnesses; that the clerk at first included Hardin’s name in the subpoena with the other witnesses, but then, recalling that he had on September 80th, at the instance of the state, issued a subpoena for said witness in which was included several others, he thereupon so informed Mr. Moore and erased Hardin’s name from the subpoena. Mr. Moore acquiesced in this. The clerk was doubtless attempting to act under article 1577, P. C., which prescribes:

“It shall be unlawful for the clerk, of any district court, after a witness in a felony case has been served with a subpoena or an attachment, to issue any other or further process for said witness, except upon the order of the presiding judge, made upon application to him for that purpose. When a witness has been served with process by one party, it shall inure to the benefit of the opposite party, in case he should need said witness; and, as far as practicable, the clerk shall include in one process the names of all witnesses for the state and defendant; and such process shall show that the witnesses are summoned -for the state and defendant. Any district clerk who shall violate the provisions of this' law shall be deemed guilty of a misdemeanor, and punished by a fine of not less than ten nor more than one hundred dollars.”

It will be clearly seen by this that the clerk is forbidden to issue another subpoena for a witness only when that witness has already “been served with a subpoena.” Even then, upon application to the judge, appellant or his attorneys could have had another subpoena issued for this same witness. Surely, the appellant and his attorneys are presumed to know this law, and, if they had not been satisfied then with the process that had been issued at the instance of the state for said witness, they should have applied to the judge and have procured another subpoena for'him. It cannot be held that appellant, under the circumstances, was deprived of process for his witness. If the clerk was mistaken, the appellant and his attorneys knew it. The law did not prohibit him from getting another subpoena, unless he had actually been served with a prior subpoena. In this instance, he had not only not been served at that time, but was not served at any other time. Upon application to the judge, which would have taken practically but a short time, he could have secured another subpoena, if he wanted it, even if the witness had been served, but especially as he had not been served. Instead of resorting to the proceedings clearly authorized by law, he elected to abide by the process the state had had previously issued for the witness as a state’s witness.

But it is claimed by appellant and his attorneys that they, and neither of them, knew that the court had on September 25th set the case for trial on October 19th, and they claim that they nor either of them heard or knew of this until about the time Mr. Moore applied for said subpoena on October 14th. Instead of this being an excuse for not applying for process earlier, it but emphasizes the negligence in the premises and shows a total lack of diligence in even applying for process, much less having it served. They all knew the court was in session; they all doubtless knew that appellant had been indicted and served with a copy of the indictment on September 23d; they all knew that almost necessarily the case must at once be set for trial and a special venire ordered and issued. By their own showing they knew that the docket for the trial of criminal cases would be set for the week earlier than October 19th, or in no contingency later than October 19th. It was their business to know what the court was doing in open court about said case and the setting thereof. The slightest diligence by any or either of them would have disclosed the knowledge of the setting of said case and the proceedings therein, if they had sought to obtain it. As shown, two of his attorneys were residents of Hillsboro where the court was in session, though Judge Morrow was not there as stated. The others lived at the points indicated. Everyone knows that the telephone, the telegraph, and United States mails could be used any day, practically any hour of the day, to have ascertained these facts or any of them; but they failed to show that they availed themselves of any of these means to ascertain any of these facts, notwithstanding appellant, and they, knew that he would be tried at that term of court; that it was their business and duty to look after the case and prepare it promptly in his behalf for trial.

Again, Judge White, in section 599 of his Ann. O. O. P., says:

“An application for continuance must state the residence of the witness; and when it states that a witness is temporarily absent it should state how long he had been so absent, and when he left the county of his residence. Dove v. State, 36 Tex. Cr. R. 105 [35 S. W. 648]; Vanwey v. State, 41 Tex. 639; Wolf v. State, 4 Tex. App. 332; Thomas v. State, 17 Tex. App. 437; Colton v. State, 7 Tex. App. 50. Where the application for continuance did not show at what time the defendant ascertained that the witness was a resident of the county to which he had a second attachment issued, the diligence was insufficient. Hughes v. State, 18 Tex. App. 130.”

Again, Judge White, in section 602 of his Ann. C. C. P., says:

“The fact that an absent witness desired by the defendant has been duly subpoenaed by the state does not dispense with such diligence as would entitle defendant to a continuance. Drake v. State, 5 Tex. App. 649. Under provisions of article 1577, P. C., either party may avail himself of process issued for witnesses by the opposite party; but the party relying for a continuance on process issued by the adverse party must be able to show that diligence was used by such opposite party. * * * Mixon v. State, 36 Tex. Cr. R. 66 [35 S. W. 394]; Byrd v. State, 39 Tex. Cr. R. 609 [47 S. W. 721]."

Neither the applications nor the record otherwise show that the state used any diligence whatever to ascertain the residence or whereabouts of the witness Lum Plardin. All that is shown that the state did was simply and solely to have subpoena issued for him, as stated, and have it placed in the sheriff’s hands. Apparently the state was indifferent about getting that particular witness. It seems to us the slightest diligence by the state even to ascertain the whereabouts of said witness would have succeeded in doing so in ample time to have secured his attendance, and the appellant on October 14th, when he learned through his attorney that the state had had said process issued, could have then ascertained why he had not been served and made some effort to hunt him up in time to have him served.

We are clearly of the opinion that the lower court ruled correctly in overruling both of appellant’s applications for a continuance because no diligence was used to secure the attendance of said witness.

In discussing and passing upon the action of the court in overruling said applications, we have discussed the question as if the materiality of the testimony of Hardin in appellant’s favor was conceded. As a matter of fact, the state vigorously contends that the evidence of the-absent witness, instead of being in favor of appellant, would have been against him decidedly. As stated, a copy of his evidence at the examining trial is contained in the application for a continuance.

Our continuance statute (O. O. P. art. 608) further provides that, when an accused’s application for a continuance is overruled, “if it appear upon the trial that the evidence of the witness * * * was o^ a material character, and that the facts set forth in said application were probably true, a new trial should be granted.”

As stated, said statute and the decisions, are to the effect, as thus stated by Judge White:

“The truth, merit and sufficiency of an application therefor are matters now addressed to the sound discretion of the trial court. Abrigo v. State, 29 Tex. App. 143 [15 S. W. 408].” Section 620.

So that the court, in acting upon the motion for a new trial because of the overruling of appellant’s applications for a continuance, must consider, and we, of course, must presume he did, whether a new trial should be granted under all of the facts of the case.

Under such circumstances, among others, Judge White lays down these rules:

“An application for continuance will be held properly overruled, when, in connection with the evidence adduced on the trial, it is apparent that the proposed absent testimony would not be probably true. Carver v. State, 36 Tex. Cr. R. 552 [38 S. W. 183]; Reyons v. State, 33 Tex. Cr. R. 143 [25 S. W. 786, 47 Am. St. Rep. 25]; McKinney v. State, 31 Tex. C. R. 583 [21 S. W. 683]; Brotherton v. State, 30 Tex. App. 369 [17 S. W. 932]; Withers v. State, 30 Tex. App. 383 [17 S. W. 936]; Beeper & Powell v. State, 29 Tex. App. 63 [14 S. W. 411]; Wilks v. State, 27 Tex. App. 381 [11 S. W. 415]; Testard v. State, 26 Tex. App. 260 [9 S. W. 888]; Peterson v. State, 25 Tex. App. 70 [7 S. W. 530]; Melton v. State, 24 Tex. App. 47 [5 S. W. 652]; Parker v. State, 24 Tex. App. 61; Collins & Lindly v. State, 24 Tex. App. 141 [5 S. W. 848]; Henning v. State, 24 Tex. App. 315 [6 S. W. 137]; Harvey v. State, 21 Tex. App. 178 [17 S. W. 158]; Doss v. State, 21 Tex. App. 505 [2 S. W. 814, 57 Am. Rep. 618]; Rice v. State, 22 Tex. App. 654 [3 S. W. 791]; Murray v. State, 21 Tex. App. 466 [1 S. W. 522]; Cunningham v. State, 20 Tex. App. 162; Bond v. State, 20 Tex. App. 421; Mendiola v. State, 18 Tex. App. 462; Chandler v. State, 15 Tex. App. 587; Henry v. State, 38 Tex. Cr. R. 306 [42 S. W. 559].” Section 643.
“The court on appeal will not revise or reverse the judgment of the lower court refusing a continuance or postponement, and the overruling of the motion for new trial based upon the application for continuance or postponement, unless it is made to appear by the evidence adduced at the trial that the proposed absent testimony was relevant, material, and probably true. Koller v. State, 36 Tex. Cr. R. 496 [38 S. W. 44]; Lindsey v. State, 35 Tex. Cr. R. 164 [32 S. W. 768]; Moseley v. State, 35 Tex. Cr. R. 210 [32 S. W. 1042]; Tate v. State, 35 Tex. Cr. R. 231 [33 S. W. 121]; McGrath v. State, 35 Tex. Cr. R. 413 [34 S. W. 127, 941]; Wilkins v. State, 35 Tex. Cr. R. 525 [34 S. W. 627]; Waul v. State, 33 Tex. Cr. R. 228 [26 S. W. 199]; King v. State, 34 Tex. Cr. R. 228 [29 S. W. 1086]; Cline v. State, 34 Tex. Cr. R. 415 [31 S. W. 175]; Wyley v. State, 34 Tex. Cr. R. 514 [31 S. W. 393]; Neel v. State, 33 Tex. Cr. R. 408 [26 S. W. 726]; Russell v. State, 33 Tex. Cr. R. 424 [26 S. W. 990]; Shaw v. State, 32 Tex. Cr. R. 155 [22 S. W. 588]; Hyden v. State, 31 Tex. Cr. R. 401 [20 S. W. 764]; Brookin v. State, 26 Tex. App. 121 [9 S. W. 735]; Browning v. State, 26 Tex. App. 432 [9 S. W. 770]; Brooks v. State, 24 Tex. App. 274 [5 S. W. 852]; Jackson v. State, 23 Tex. App. 183 [5 S. W. 371]: Hennessy v. State, 23 Tex. App. 340 [5 S. W. 215]; Covey v. State, 23 Tex. App. 388 [5 S. W. 283]; Rice v. State, 22 Tex. App. 654 [3 S. W. 791]; Miller v. State, 18 Tex. App. 232; Mathews v. State, 17 Tex. App. 472; Beatey v. State, 16 Tex. App. 421; Wooldridge v. State, 13 Tex. App. 443 [44 Am. Rep. 708]; Word v. State, 12 Tex. App. 174; Clampitt v. State, 9 Tex. App. 27; Dowdy v. State, 9 Tex. App. 292.” Section 647.
“The court on appeal will not reverse a judgment on account of the refusal of a postponement or continuance unless in connection with the other evidence adduced on the trial they are impressed with the conviction, not merely that the defendant might probably have been prejudiced in his rights by such ruling, but that it was reasonably probable that if the absent testimony had been before the jury a verdict more favorable to the defendant would have resulted. Land v. State, 34 Tex. Cr. R. 330 [30 S. W. 788]; Gallagher v. State, 34 Tex. Cr. R. 306 [30 S. W. 557]; Easterwood v. State, 34 Tex. Cr. R. 400 [31 S. W. 294]; Sinclair v. State, 34 Tex. Cr. R. 453 [30 S. W. 1070]; Bluman v. State, 33 Tex. Cr. R. 43 [21 S. W. 1027, 26 S. W. 75]; Goldsmith v. State, 32 Tex. Cr. R. 112 [22 S. W. 405]; Hyden v. State, 31 Tex. Cr. R. 401 [20 S. W. 764]; Hammond v. State, 28 Tex. App. 413 [13 S. W. 605]; Frizzell v. State, 30 Tex. App. 42 [16 S. W. 751]; Pruitt v. State, 30 Tex. App. 156 [16 S. W. 773]; Ellis v. State, 30 Tex. App. 601 [18 S. W. 139]; Browning v. State, 26 Tex. App. 432 [9 S. W. 770]; Boyett v. State, 26 Tex. App. 689 [9 S. W. 275]; Covey v. State, 23 Tex. App. 388 [5 S. W. 283]; Self v. State, 28 Tex. App. 398 [13 S. W. 602]; Phelps v. State, 15 Tex. App. 45.” Section 647, par. 2.

After a careful study of the record herein, we think the trial judge could correctly conclude, as he doubtless did, that the absent witness would not testify as appellant alleged he would, and that, even if he did, his testimony in that respect would not be probably true; and we think he was well justified in so believing and holding, and that, under the facts and circumstances of this case, no reversible error is presented by the court’s action in overruling his motions for continuance and denying him a new trial because thereof.

It became a material question whether the open knife, which was found upon the body of the deceased some time after he was killed, was appellant’s knife. Appellant introduced his wife, who produced, identified, and it was introduced in evidence, another knife — not the one found on deceased ■ — which she testified and claimed she got out of appellant’s pocket that night after the killing and was the only knife he then or prior thereto had owned. The state was permitted to cross-examine her on this matter. The bill states it pretty fully, but it is lengthy and unnecessary to copy it.

Again, appellant had his wife to testify that about three years before the killing she saw her son, the deceased, have a gun, and heard him say in connection therewith that he was going to kill “Lee Stacy with his own G-d d-n gun and shells.” On cross-examination, the state was permitted, over appellant’s objections, to have the wife testify to the facts and circumstances connected with the said threat by the deceased and the action of deceased in connection therewith, and that he soon after-wards permanently left her home, but returned repeatedly before the killing and talked ,with and to appellant and was friendly with him, etc. Appellant contends that in these particulars the state could not cross her and have her to detail said facts. We have repeatedly, in recent years, considered and written upon this subject. We see no necessity to again review the question. It is clear to us that the cross-examination of appellant’s wife in this instance was legitimate and proper and in no way in violation of the statute or any decision of this court, but, in effect, entirely in harmony therewith. Roberts v. State, 168 S. W. 112; Taylor v. State, 167 S. W. 60; Johnson v. State, 162 S. W. 514; and the cases and authorities cited in each of them.

Appellant has one bill complaining of the action of the court regarding the argument of Mr. Frazier, one of the attorneys for the prosecution, and of certain remarks used by him therein. It is stated in the bill that the court refused to permit the appellant’s attorneys to object to the language of Mr. Frazier at the time it was being uttered, but required them to wait till the speech was concluded and then he would act upon it and they could request their special charges to the jury on the subject. The bill, it seems, contains the stenographer’s report of what occurred, taken down at the time. The court, in explanation of the bill, expressly states that appellant’s allegation therein that he refused to hear objections to Mr. Frazier’s argument at the time and required them to wait till he had concluded “is incorrect,” and he states, and we think it is substantiated by the stenographer’s report, that they did object during the time and were not required to wait until the conclusion of the speech. We think this bill shows no error. We think, also, that the language used by Mr. Frazier in argument was based on the evidence or inference therefrom. The court gave some of appellant’s special charges requiring the jury not to consider certain language of Mr. Frazier. We think none of this shows any reversible error on the part of the court, as held by a long line of decisions of this court. Pierson v. State, 18 Tex. App. 524; House v. State, 19 Tex. App. 239; Tweedle v. State, 29 Tex. App. 591, 16 S. W. 544. It is unnecessary to cite the many other cases.

The three questions above discussed, as we understood from appellant’s attorneys in the submission of this case, were the points on which they relied for reversal. They assign some other questions. We have examined all of them, and in our opinion none of them present any error.

The judgment will therefore be affirmed.

DAVIDSON, J.

(dissenting). 1. I believe the continuance ought to have been granted either at beginning of the trial or on the later application during trial. I may write more at length on this question if rehearing is refused.

2. The error complained of in regard to the charge — not discussed in the opinion— in court’s failure to submit self-defense from attack or apparent attack by John Oasey as well as deceased, is well taken. The court limited self-defense to acts only of deceased-. The other issue is presented from the facts as I understand them.

On Motion for Rehearing.

PRENDERGAST, P. J.

In the submission of this case we understood appellant, through his attorneys, conceded that the only questions necessary to be decided were those discussed in the original opinion. However, his attorneys claim that, while they only presented those questions in oral argument at the time, none of the others were waived, but \yere relied upon. It therefore becomes necessary to now pass on all these questions.

We have again reviewed the case, and all the questions in it, and are confirmed in the opinion that no reversible error was committed by the trial court.

We will state succinctly the material testimony. Adam Butcher, with his family, lived about 314 miles south from Aquilla, in Hill county. Appellant at the time of the trial was a young man 25 years old. He had married a widow, Mrs. Stacy, about four years before the killing. Mrs. Stacy had three times before then been married to other men and had children by each of them. Her last husband before appellant was also named Stacy, but no relation of appellant. Mrs. Stacy was about 52 years old when she married appellant, or, at least, at the time of his trial she was that old. At the time they were married, four of the Stacy children, two girls and two boys, lived with their mother. The two boys, John and Joe, were then, respectively, about 15 and 13 years old. Both of them after this marriage quit their home and struck out for themselves. Each, however, returned to their mother’s and appellant’s home from time to time, and occasionally stayed a few days at a time. The two 'girls were still younger than these boys. It seems, about a year after the marriage, trouble arose between Joe, the deceased, and appellant, which resulted in Joe removing, and thereafter remaining, from his home. At the time of the homicide, appellant with his wife and her said two daughters lived in Aquilla. On the night of May 7, 1914, Butcher gave a dance at his house in honor oF appellant, and invited thereto a considerable number of guests, and among them John and Joe Stacy, who attended the dance. Appellant took his wife and said two girls in the buggy with him to the dance that night. However, he armed himself with a pistol buckled around him, which he carried to the' dance and kept on his person concealed until he killed deceased therewith. Just before or about midnight, in the progress of the dance, John Stacy was going to dance with his sister, Kitty, in one of the sets. Kitty was then about 15 or 16 years old. Appellant forbade her dancing with John and prevented her doing so. This incensed John, and he left the house, went out some, perhaps, 30 steps therefrom, others with him or soon afterward followed him, where he proceeded to vent his spleen to them about appellant, and curse and abuse, and then threatened he would whip him. Joe and Butcher being made aware, or hearing the disturbance, went out to where John was. Appellant also went out of the house about this time, outside of the yard about his buggy, and stopped some 30 yards from where .John and the others then were. He heard at least a part of what was said by John and Joe at this time, and heard, as he states, the threats to whip him, etc. Butcher and Joe, and perhaps others, undertook to pacify John, and did pacify him; he agreeing to drop the matter, which he did. He put on his coat and started back into the house. In passing back to the house he passed in four or five steps of where appellant was at the time, and after passing him some five or six steps, with his back towards appellant, and doing nothing and saying nothing to appellant, appellant then shot and instantly killed Joe, who was standing three or four feet from him.

Adam Butcher testified that after quieting John they all started to the house, John ahead. He said:

“I saw Dee Stacy as we were going to the house. When I first saw him, he .walked up to Joe, in about four or five feet of him, and I heard him tell Joe for them to cut that out, and cut it out quick; he just says: ‘Now, you G-d d-d boys, cut this out, and cut it out quick.’ That is the words he said. * * * Joe stopped when Lee spoke to him. When Joe stopped, Will Wright was right up close to him on the left-hand side of him, and I was on the right-hand side of him and about four or five feet, maybe, from him. When Lee Stacy said that, I looked around, and Joe said something, but I never understood what Joe said, and Lee shot him1. Lee just pulled his gun out and rested his elbow against his side, just that way (illustrating), and shot. He rested his elbow against his right side. The weapon he used was a pistol. When Lee Stacy fired the shot, Joe Stacy was just standing there with his hands down, and, when Lee started to shoot, he threw his left hand up. Lee had pulled his pistol before Joe throwed his hand up. Before Lee pulled his pistol, Joe was just standing still with his hands down that way (illustrating). At the time that Lee Stacy made the remark that I have testified to and drew his pistol, I saw Joe Stacy's hands. There was nothing between me and Joe Stacy at that time, and I was only about four or five feet from him. It was a nice, pretty, bright, moonlight night; the moon was about straight up and down. There was nothing where I was, or where Joe Stacy was, or where Lee Stacy was, at that time to prevent me from seeing the parties. When the pistol fired, Joe Stacy just tumbled down, fell to the ground backwards and a- little bit on his left side. I saw his hands when he fell; one of them was lying across his breast, and the other was lying on the ground stretched out. The right hand was lying stretched out, open on the ground, with the palm up. The left hand was lying open on his breast. There was nothing in the palm .of Joe Stacy’s right hand when he was lying there on his side and back on the ground. There was nothing on his breast or his body at that time at or near his hand where it was lying on his breast. I went to the body after Joe fell, went right to it immediately after he fell. Lum Hardin also went to the body at that time. Mr. Lee Stacy told me to see -if Joe Stacy was dead and to phone for the doctor.”

This witness then states that he went into-the house and phoned for the doctor; that this kept him some 15 minutes in the house. He then states that he went back out to the body of deceased, and then for the first time saw an open knife on the body of the deceased, lying on or about his right shoulder.

'Will Wright testified that he was standing right at and with Joe when appellant shot him — so close that he was powder burned from appellant’s pistol shot. He said:

“I saw Joe Stacy’s hands at the time that Lee fired. They were down by his side and were open just like a man would have his hands down. There was nothing in his hands at that time.”

He further said Joe was bareheaded and in his shirt sleeves.

Mrs. Butcher testified that she was standing on her gallery when the shot was fired, and went immediately to the body of the deceased; that she felt of the head and pulse of the deceased, kneeled down by him, and felt of his other hand, and said; “There was not anything in either one of his hands at that time.” Further:

“There was no knife or weapon of any kind on his shoulder here at that time that I seen. There was nothing there between me and the body to prevent me from seeing a knife on his shoulder here if there had been one there.”

The next day after the killing, the justice of the peace held an examining trial, and among other witnesses who testified for the state was Lum Hardin, the witness whose absence appellant sought a continuance for. His testimony was taken down in writing and signed by him. After telling about being out where John and Joe were when John was venting his spleen against appellant, he went back into the house. We then quote his evidence:

“I was _ in house about five minutes and went out in front and heard John fussing and talking, and I ’lowed it was a row. When I got out there, I heard him speaking about Lee; didn’t understand what he said. At that time Lee was standing out 10 or 12 steps from where the boys were standing, and I guess about 25 or 30 steps in front of the house. Joe and somebody else, I think Mr. Butcher, were holding John. Joe said: ‘It aint no use in talking about it so much. ,We will just whip the damn son-bitch.’ Lee said: ‘Turn them aloose. I don’t think there is any harm in ’em’ — something like that. John kept walking toward the house with Joe. Joe stopped, and at that time he was north of Lee and going west towards the house. I- don’t know why Joe stopped. At time he stopped he was four or five steps from Lee. The direction that Lee was going at time he stopped would have led him to door of the house. At time Joe stopped I was a step or two from Lee and four or five from Joe. If Joe Stacy said anything I don’t remember. I never heard Joe say anything that I recollect before the shop ting. Joe stopped and turned to his left facing Lee, and Lee immediately reached back and pulled his gun and shot Joe. He didn’t pull the gun so overly quick. I never noticed whether or not Joe had anything in his hands at time of shooting. Lee said something about a knife, but I don’t remember what it was he said. I don’t remember whether he made that statement before Joe stopped or after-wards, or before he shot Joe or afterwards. Immediately after Lee shot Joe, in a minute or two, I and Mr. Butcher walked by Joe. I walked slowly by Joe and looked at him. I was four or five steps from him, and it was light so I could see him distinctly. I could see his face, and arms and legs,. clearly. I saw no knife about his person. 1 again looked at Joe’s body up close enough to see him plainly, when the doctor come. After the- doctor got there, I looked at Joe’s body again, and saw a knife laying upon Joe’s right breast up over his right lung. It was a two-bladed knife with little blade open. The knife was lying lengthwise with his body, with the blade pointing up towards his head. [Signed] Lum Hardin.”
Cross: “I came out at the east door at opposite side from door I went in. Lee was out in front of house, and I walked to side of Lee and put my hands on his shoulder and said something. Me and him talked a few words, but I disremember what we talked about. Somebody was standing there with Lee. John and Joe were walking by Lee, and Joe stopped. The remark Lee made about a knife was immediately before or at time of the shooting. The second time I looked at Joe’s body, Lee told me to go for doctor.”

All the testimony shows that appellant remained out about the body oif the deceased some little time after he sent Butcher to telephone for the doctor. All of the witnesses who testified on the subject testified that, when they later saw and examined the body of the deceased, they then for the first time saw an open pocketknife lying on the body of the deceased about his right shoulder. No evidence is given showing that this knife was the knife of deceased. The state introduced evidence tending strongly to show, and from which the jury were clearly justified to believe, that this knife was appellant’s knife and opened and placed on the body of deceased by appellant after he had killed him.

Appellant testified said knife was not his knife, and that he did not place it on the body of the deceased, and that:

When Joe, deceased, got in about six or eight feet of him, “why 1 says to Joe, I says, ‘Joe,’ I says, ‘There is not any use of this,’ and he said something back to me, and I didn’t understand what it was, and when he did why I pulled a gun and shot him. At the time I shot him, he was coming on to me with a knife. At the time I spoke, he was about as far as from here to that outfit there, and when I shot him he was something like 3 feet, maybe 3% feet or 4 feet, from me. At the time I shot him, he was standing just about in that position (illustrating). For instance, like 1 was standing there, he was standing like this (illustrating), and when I pulled the gun out he had his knife in his hand coming on to me. He had the knife in his right hand, and when he seen me go for the gun he reached this way with his left hand; I taken it he was reaching for the gun, and when he did I pulled the trigger” — claiming that he killed him in defense of his person.

But little further need be said about the court’s overruling appellant’s application for a continuance and refusing a new trial on that ground. Appellant overlooks the fact that we did pass upon the question in the original opinion from the basis of the state having had a subpoena issued for the absent witness. We cited two of the decisions appellant now cites (Mixon v. State, 36 Tex. Cr. R. 66, 35 S. W. 394, and Byrd v. State, 39 Tex. Cr. R. 609, 47 S. W. 721), and quoted what Judge White said on the subject. It is unnecessary to repeat that here. The bills on the subject of the court’s refusal to continue are very lengthy. A careful consideration of them, we think, demonstrates that neither the state, nor the appellant, used any sufficient diligence before the cas'e was called for trial to ascertain the whereabouts of the absent witness or have him served. Both sides apparently relied alone on the fact that at the time of the killing, more than six months before this trial, Lum Hardin was then a resident of Hill county; that no inquiry whatever was made after that to ascertain where the witness was; that some considerable time before the trial, the time not being definitely shown, said witness had left Hill county. How long he had been gone is not shown, and none of the parties seemed to have ascertained even this fact until after the case was called for trial. Any diligence, the slightest, by either side, would unquestionably have ascertained this fact, and in ample time to have had him subpoenaed and in attendance if in the state, or, if out of the state, his depositions could have been taken.

In the two cases cited and relied upon by appellant (McMillan v. State, 146 S. W. 1190, and Valigura v. State, 150 S. W. 778), more diligence was therein shown than herein. Besides, in each of those cases on the motion for rehearing the appellants therein procured and filed, in connection with their motions for new trial, the affidavit of the absent witnesses specifically stating what they would testify, which, in each instance, would show that the appellants therein were not guilty, and both of those eases were reversed for that reason. No such affidavit, nor any, is shown in this case.

Appellant offers no new argument or authority in support of his contention that the state’s cross-examination of Mrs. Stacy, wife of appellant, was improper. We correctly passed upon that question in the original opinion and cited some of the authorities.

The only other question discussed in the opinion was appellant’s complaint to the argument of Mr. Frazier and the action of the court in connection therewith. This was sufficiently stated in the original opinion and some of the cases therein cited. In addition, on that point .we cite Mooney v. State, 176 S. W. 52, not yet reported, where we review this question more fully and cite other authorities.

Miss Josie Wright was a young lady who lived in the same community where deceased and appellant lived. She testified that deceased visited her very often just before he was killed (appellant testified he knew this); that they were engaged to be married, and had fixed the time in July, 1914, to- be married; that in March, before he was kittled in May, she and her mother went on a visit to North Texas and were away on this visit when deceased was killed ; that the appellant saw her often in passing back and forth, and he made love to her repeatedly; that appellant asked her if she and Joe were going to marry, and she told him they were, and that he also asked her mother, and her mother told him that they were, and “he said we should not marry, that he would kill him first”; that this occurred just before she and her mother left on said visit. Appellant, it seems, made no ■objection to this evidence when introduced. At least, there is no bill of exceptions thereto. But he asked, and the court refused to give, a special charge not to consider the testimony of Miss Josie Wright in regard to an alleged threat of defendant. It was shown that the mother of Miss Wright died before the trial. Mrs. Will Wright was permitted to testify, over appellant’s objection, that she saw appellant the evening before deceased was killed that night; that he had a conversation- with her in which he asked her if she knew whether Joe and Josie were going to marry or not, and if she knew when Josie and Mrs. Wright, her mother, were coming back; that she told him she did not know when they would return, and that she did not know whether Joe and Josie were going to get married or not, but that Carrie, Joe’s half-sister, said that they were going to marry in June. Appellant said, “I bet you a thousand dollars against a nickel they don’t marry in June.”

Clearly, under all of the authorities, the testimony of Miss Wright and Mrs. Wright, just above stated, was admissible to show threats, motive, malice, and intent by appellant. White’s Ann. P. C. §§ 1230, 1231.

The record shows that when the trial judge prepared his charge he submitted it, as required by the statute, to appellant's attorneys ; that they made several objections thereto. Thereupon, the court, doubtless in order to meet these, or to properly correct his charge as pointed out by the exceptions, rewrote it; that when again presented to appellant’s attorneys they made only this exception to subdivision 16 of'it, which is preserved by bill of exception:

“(2) Said charge is defective in failing to tell the jury that the defendant had a right to defend against apparent danger from either John-Stacy or Joe Stacy, or both of them, and in failing to advise the jury of the rights of the defendant if he believed the attack or threatened attack was by both of them.”

In order to discuss this question, we will quote the whole of the court’s charge on the subject of self-defense. It is:

“(15) You are further instructed that a reasonable apprehension of death or serious bodily harm will excuse a person in using all necessary means to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared from his standpoint at the time; and in such case the party acting under real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant. If therefore, from the evidence, you believe that the defendant killed the said Joe Stacy, yet if you believe that the words, acts, and conduct, or either, of the deceased, at the time of or just before the killing, caused the defendant to' have a reasonable expectation or fear of death or serious bodily injury, and that acting on such reasonable expectation or fear the defendant killed the deceased, or if you have a reasonable doubt as to said matters, then the killing was in self-defense, and you should acquit the defendant, and so say by your verdict; and in determining the question as to whether or not the defendant had a reasonable apprehension or fear of death or serious bodily harm at the time he killed the deceased, if he did kill him, you must view the matter from the standpoint of the defendant at the time and from his standpoint alone; and if the defendant had a reasonable expectation or fear of death or serious bodily harm, viewing the matter from his standpoint alone at the time, he had a right to shoot until he believed himself to be out of danger.
“(16) You are instructed that, if the deceased was attacking or about to attack the defendant with a deadly weapon, under the law it would be presumed that he intended to kill the defendant. And if you have a reasonable doubt from the testimony as to whether the deceased attacked the defendant or was about to attack the defendant with a deadly weapon, or, viewing the matter from the defendant’s standpoint, the defendant had a reasonable apprehension that the deceased was attacking or about to attack the defendant with a deadly weapon, you will indulge the presumption that the deceased intended to kill in favor of the defendant.”

It is clear from the record that in order to meet this objection the appellant requested, and the court gave, just as asked, his special charge No. 3, as follows:

“Gentlemen of the jury, you are instructed that if you believe from the evidence that defendant was attacked by Joe Stacy or by Joe and John Stacy, or was threatened with attack by them, or either of them, that he was not bound to retreat but had the right to stand his ground and defend against such attack.”

At any rate, this special charge is all that should, under any of the testimony of this case, have been given. All the evidence, without any doubt, shows that notwithstanding John Stacy had wanted, by his talk, to whip appellant, and applied in the hearing of others and in appellant’s hearing opprobrious epithets about him, yet, at the instance of Joe Stacy and others, he had entirely abandoned any attack upon appellant, and had expressly agreed to do so; that he thereupon put on his coat and started back into the house to the dance; that in so going he passed in four or five steps of appellant, in plain view of him, and appellant did not deny this though he said he did not see him do so. The testimony of no witness shows, or tends to show, that at the time, and just immediately prior to when appellant killed deceased, John Stacy said or did anything whatever showing an attack or any contemplated attack whatever upon appellant then. All the witnesses who testified on the subject showed that John Stacy was going back into the house at the time. Ad.am Butcher testified:

“It was about 15 or 20 feet, I expect, from where Joe Stacy was shot to where Johnny had got at the time of the shooting; Johnny was right at the steps that lead over the fence. I had stopped there when Lee walked up to Joe, and Joe and Lee had stopped when I last saw Johnny Stacy going on towards the house. I never measured how close Johnny Stacy passed to Lee, but I guess it was about five or six feet.”

Substantially to the same effect is the testimony of Will Wright. The justice of the peace made a map of the ground and its surroundings where the killing occurred. The location of where the deceased fell and the appellant stood when he killed him, is shown by the map exhibited before the jury and the places pointed out. John Stacy testified:

“When I heard the report of the pistol that killed Joe, I was in about three steps of these steps here going over the fence. In going to that point within three or four steps of the steps leading over the red fence, I met and passed Lee Stacy before I got to where I was when the pistol fired. At the time that I passed Lee, he was out up towards the yard fence, up towards that big tree, and was in about four or five steps of me when I passed him. My brother, Joe, was behind me at the time that I passed Lee. * * * I was about ten steps, I guess, from the steps leading over the fence, when I first saw and passed Lee. There was no one with me at the time I, passed him; I was by myself.”

On this point, appellant himself swore that:

After the party started away from where Johnny had been cursing at and abusing him, “I seen Joe start towards me, but I would not say which way Johnny was. I would not swear that Johnny passed me or where he went to. It was crowded up there. There was several of them there, and I would not swear that he did pass me. I had my eyes on Joe. * * * As to whether I saw the two boys, Joe and John, as they started away from there going toward the house, I will say that I saw Joe as he started towards me. * * * I won’t swear that I saw them both coming towards me. I did not say awhile ago that they both came at me; I said that Joe did. The last time I seen John was when Joe started towards me. When Joe started to me, they were standing there; the whole crowd was all standing around there, and, when Joe said what he did, why I kept my eyes right on him; and never looked to see which way Johnny did go, where he was at. I heard John curse me, but I didn’t keep my eyes on him, because I kept my eyes on Joe. From what he said I had a good right to watch him. I didn’t have the same right to watch John, because Joe started to me, and I never did see where John went to.”

As stated, the testimony of no witness, nor all of it together, shows or tends to show that John Stacy did or said anything at the time of the killing to show that he then was making or attempting to make any attack whatever upon appellant, and the testimony shows that he then said nothing to Joe to in any way encourage or induce him (Joe) to attack appellant.

No one can question the law that where an attack is made upon an accused by two persons, they both being present, or by one person when the other is present in any way aiding or encouraging the attack, the accused would have the right to defend against both as well as either, and, whenever the evidence raises such a question, it would be proper for the court to correctly charge the jury on the subject ; but in this ease the evidence shows that John Stacy was not in any way making any attack upon appellant, nor in any way aiding Joe to do so. On the contrary, it excludes any such idea. So that the court committed no error on this point as claimed by appellant.

The motion is overruled.

DAVIDSON, J.

I dissent. 1. Continuance is fully sufficient and ought to have been granted. Absent witness would have corroborated defendant, who testified in his own behalf, as to the knife in hands of deceased, and the attack by deceased and his brother.

2. Charge was not sufficient on self-defense against the attack of the two brothers.

3. The court should have permitted exceptions to the speech of county attorney at time of making it, and not required defendant’s counsel to wait termination of county attorney’s argument. Besides, the speech was clearly improper.
      ©=>Yor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      ®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes