236 S.W. 745 | Tex. Crim. App. | 1922
Appellants were convicted in the District Court of Brazos County, and their punishment fixed at confinement in the penitentiary for a period of twenty years.
Appellants were jointly charged with the murder of Dr. B. Harrison. The case originated in Grimes County in 1918, and was transferred to Harris County, and subsequently to Brazos County, where the instant trial was had. When the case was called for trial appellants presented their motion for continuance, the overruling of which is here presented as error. Continuance was sought because of the absence of Mrs. Mabel White, wife of appellant Onie White, it being set up that at the time of making such application the witness was in Eastland County and in such physical condition as that she could not attend the trial. A sworn certificate of her physician of date March 7, 1921, was attached to said application, certifying that Mrs. White was seven months advanced in pregnancy, and that because of certain complications named, she should not undertake a long railroad journey nor be subjected to a severe mental strain. The application was controverted by the State and certain affidavits were attached, only one of which relates to the testimony of Mrs. White. Dr. H.B. Harrison was killed in Grimes County, Texas, on January 8, 1918. The killing took place at a point near the house occupied by appellant, Onie White, and his family. Onie White and his brother, a codefendant, Horace White, and deceased were the only parties immediately present at the homicide. The State introduced three eyewitnesses who stated they were near enough to the scene to witness the killing. For appellants, and besides themselves, their father was their only eyewitness, and he stated that he was five or six hundred yards from the scene of the difficulty and saw a part of same.
There seems no controversy of the fact that Mrs. Mabel White had been duly summoned as a witness, and we are of the opinion that the certificate of the physician sufficiently showed her inability to be present. The application sets up that Mrs. White was at her home at the *586
time of the homicide, about fifty yards distant, and that she saw most, if not all, of the fatal difficulty, and facts are detailed which, if true, would make her testimony very material in support of the theory that the shooting was in self-defense or defense of a brother. Said application was overruled. To their motion for new trial appellants attached the affidavit of Mrs. White, in which she says that if present she would have testified to facts which appear identical with those contained in the application. The motion for new trial was denied, and the error here set up is predicated on such action. The question is not a new one. Our opinions uniformly agree that if diligence is shown and the absent testimony appear material and probably true, and is of such character as that same might have produced a different result, a new trial should be granted. Many of our decisions, apparently beginning with Baines v. State,
There was a sharp contention as to whether or not Dr. Harrison had a pistol and was making any attack or demonstration with it when he was shot. Appellant claimed that he had such pistol and was making such attack. They asked special Charge No. 4 presenting the principle embodied in Article 1106, Vernon's P.C. We do not think the refusal of such special charge shows any error. In his main charge the court gave the following:
"If deceased was armed with a pistol at the time he was killed and was making such an attack on Horace White, and the manner of the use of such pistol, viewed from the standpoint of the defendants, was such as was reasonably calculated to produce death or serious bodily injury, then the law presumes the deceased intended to murder or inflict serious bodily harm or injury upon the said Horace White."
We think this gave to appellant all to which they were entitled and presented their theory correctly. The evidence showed that the pistol found near the body of deceased was not in condition for use as a firearm. Conceding this, it is not necessarily a deadly weapon, and was not, within the meaning of said article just referred to, a weapon such as would have been calculated to produce death or serious bodily injury, and said legal presumption that death or injury was presumed from the use of the weapon, did not arise. That part of the main charge quoted gave to appellants the right to act in defense of self or a brother if to them said weapon appeared deadly, and this fully presented the law applicable to the facts.
We refrain from a discussion of the argument of private prosecution on the trial, as same will not likely occur again. We have often written of the necessity for care in the use of only legitimate discussion of facts and the avoidance of abusive language and the expression of private opinions. *588
The testimony of Will Mallet was admitted to impeach the witness A.N. White, the father of appellants. As we view same it was upon an immaterial matter and should not have been admitted. A.N. White denied going to Dr. Harrison's cattle pen with Mallet some months before the killing, and after a difficulty between said witness and Dr. Harrison; and denied there engaging in a friendly conversation with Dr. Harrison, and stated that he had not spoken to Dr. Harrison since said difficulty. Mallet affirmed the fact of going to said cattle pen with A.N. White, but said if there was any talk between Dr. Harrison and White except about cattle he did not remember. Mallet's testimony that White went to said pen and there talked with Dr. Harrison about cattle, may have shown that White had not told the truth in his denial of such facts, but we cannot see how such facts had bearing on any issue in this case. Appellants were not present and were not bound by any of such conversation, and same shed no light upon the animus or feeling of the witness A.N. White, and seems to us clearly open to the objection that such purported impeaching testimony was on an immaterial matter. Branch's Ann. P.C., Sec. 165, and authorities cited. If this testimony of Mallet be eliminated, it will carry with it the charge of the court relating thereto, of which complaint is also made, and for this reason we forego any discussion of same.
For the reasons stated above the judgment of the trial court will be reversed and the cause remanded.
Reversed and remanded.