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not. The bill is not sufficient to present the, that the boy was sent for the shucks. The matter for consideration.

court signs the bill with the qualification (10) Another bill recites that the state that the district attorney, after the conclu"sought to bring out by her witness Billie sion of the testimony, offered to admit beNorsworthy matters concerning some cotton fore the jury that witness would have testithat deceased claimed to have lost some 10 fied as indicated, and that his testimony was months before the killing, and deceased true. We are of opinion that this does not claimed that defendant was implicated in relieve the error of the court in overruling getting the cotton.” Objection was urged to the continuance, if there was error. Such this, and the witness was permitted to testi- admission must be made at the time of fy to a conversation he had with defendant overruling the continuance as a means of with reference to deceased having accused avoiding such continuance. The reasons for him of stealing the cotton. What that con- this seem to be obvious. Had the admisversation was, otherwise than it was a con- sion of the truthfulness of the statement versation, is not stated, nor is the ground of been made at the time and before the introobjection stated. The bill recites that ap- duction of testimony, the state would have pellant objected to the introduction of the been precluded from contradicting it. The testimony, and the court overruled it. This state will not be heard to admit the truthmay have entered into the motive for the fulness of a statement and then introduce killing. In order to have brought this ques- contradictory testimony of that admission. tion before the court for consideration, But the matter was testified by witnesses beenough of the facts should have been stated fore the jury. Taking the evidence from the to manifest what the defendant supposed to statements in the motion for new trial, we be error.

are of opinion that whether this testimony [11, 12] While the witness Jenkins was was or was not before the jury would not testifying for the state, it developed that he be very material, but the jury had the mathad been brought from the county jail to ter before them anyway for their consideratestify. Upon cross-examination this OC- tion for whatever it was worth Viewing curred.

the record in the light of the motion for new "What have they got you in jail for? A. For trial, we are of opinion the court did not murder-supposed to be murder. Q. Murdering commit error in this matter. who? A. Jim Wynne. Q. What was his age ?" [16] It is contended as a final proposition

that the evidence is not sufficient to support The state objected to any further examination. The court sustained the objection,

the conviction. The testimony of White, the and would not permit the appellant to go accomplice, is corroborated by the son of de farther into details. There seems to be no ceased, who saw both White and appellant error in this matter, nor is it shown what at the place of the shooting, and appellant was the purpose of seeking the age of Jim was armed with the gun that fired the shot, Wynne. That a witness may be impeached and is further corroborated by the sheriff by showing that he was under a charge of with reference to measurements of tracks. murder is sustained by the authorities, but This would justify the jury in arriving at the authorities announce the rule that in the conclusion that appellant did fire the such impeachment usually the details of the shot from the woods which killed deceased. accusation will not be permitted. The same The testimony for the defendant shows, both may be said of the following bill of excep- by positive evidence and circumstances, that tions, as it is upon the same subject, and he was not present. In other words, he himfrom the same witness.

self swore to an alibi, and other witnesses (13-15] There is a bill of exceptions re- swore to facts which tend strongly to corrobserved to the action of the court overruling orate him. These matters were all before the application for a continuance. There the jury. They heard the witnesses, noticed were two witnesses sought, the wife of ap- their manner of testifying, and had the pellant, and a witness named Charles who whole matter in front of them, as did the seems to have been in some way related to trial court. Under such circumstances this appellant. The wife of appellant was court would scarcely feel justified in setting brought into court and testified. It is un- aside the conviction. This was either an necessary to consider the application further assassination, or it was nothing so far as the as to her. By the other witness, Charles, ap- appellant is concerned. We would not feel pellant expected to show a son of appellant justified in reversing the case for want of on the evening of the killing had been sent sufficient evidence under the stated circumby appellant to a certain house for shucks. stances. This house seems to have been not far from Finding no reversible error in the judgwhere the killing occurred. What effect this ment, or one that would justify this court testimony would have had upon the case is in reversing the judgment, it is ordered to be not made to appear. The testimony shows affirmed.

3

(222 S.W.)
5 years.

A reversal is sought upon the BOCKNIGHT V. STATE. (No. 5826.) ground that, in view of the weakness of the (Court of Criminal Appeals of Texas. May 26, ed testimony of an absent witness, the court,

state's case, and the importance of the alleg. 1920.)

having overruled an application for continu1. Criminal law m614(3)-Diligence to pro- ance, abused his discretion in refusing to cure attendance of witness not shown.

grant a new trial. Diligence to procure the attendance of a The appellant, a negro youth 19 years of witness, for whose absence a second application age, shot and killed the deceased, a negro for continuance of a trial for homicide was boy about 17 years of age. The homicide ocmade, was not shown, where it appeared that curred at night, both appellant and deceased after the first continuance defendant saw the and several of the witnesses having previouswitness, but did not get out process for his ly been at a dance. Appellant's theory, arisappearance, relying on his promise to appear.

ing from his testimony, was that there had 2. Criminal law Ow917(2)— Testimony of ab- been no previous trouble, but that while at

sent witness for which continuance was re- the dance Lilton Davis said to him:
fused must be such as would probably change
result.

"Jimmie Barnes (deceased) says he is going · A new trial need not be granted because of to make you break out of here to-night. If you the absence of a witness for which continuance don't believe what I said, go and ask Mary was refused, unless it was reasonably probable Bean; she heard it, and can tell you all about

it" that with his presence a verdict more favorable to accused would have resulted, and the proba--and further said: “He has got a knife up ble truth of the testimony of the absent witness must therefore be made to appear.

his sleeve sure enough." Appellant testified

that he asked Mary Bean about the matter, 3. Criminal law Om956(5)—Showing as to tes- and she said: “Yes; he said it, but I think it timony of absent witness held not to make

was just nigger talk.” He then borrowed a denial of new trial an abuse of discretion.

An affidavit by accused alone that an ab- pistol from the witness Lane, who was at the sent witness would testify to threats by deceas- dance, and started to go home; that before ed, which accused testified were confirmed by going home he started to go by his brother's a witness who was present, but which were de- , house on an errand for his mother, and that nied by the dying declaration and by the wit- he met the deceased, and said: “Jimmie, ness who was present, do not establish the truth what caused you to make the talk you did of the alleged testimony or the probability that about me? They say that you are going to it would affect the result sufficiently to show an make me tear out of the hall.” Deceased reabuse of discretion in denying the new trial.

plied: "You are a God damn liar, you, Mary 4. Criminal law 1141(2) Appellant must Bean and Lilton Davis both"-at the same

overcome presumption of correctness of de- time starting toward the appellant with a nial of new trial.

knife. Appellant, while running backward, The overruling of a motion for new trial fired one shot, striking the deceased in front, by the trial judge will not be arbitrarily over- and inflicting a wound from which he later turned, but the burden rests upon accused to died. He claimed that the knife in the hands overcome the presumption favoring the correct of the deceased was open, and that he had dess of the decision.

been informed on the previous day that the 5. Homicide 250-Evidence held to sustain deceased had said he intended to kill him. conviction for manslaughter.

The state's theory, as developed by the Evidence that accused sought the meeting statement of the deceased at the examining with deceased and was the aggressor in the en- trial, was, in substance, that the deceased counter held to sustain a conviction for man; had walked from the dance with a girl named slaughter though accused claimed threats and

Nina to her home, and, returning, met the apan attack with a knife by deceased.

pellant near the home of the girl; that the Appeal from District Court, Brown Coun- appellant stopped deceased, and appeared to ty; J. O. Woodward, Judge.

be mad; that he had his hand in his pocket.

Deceased said: Earl Bocknight was convicted of manslaughter and he appeals. Affirmed.

"He asked me what made me tell Mary Bean

that I was going to put him out of the house. Wilkinson & McGaugh, of Brownwood, for I told him I didn't tell Mary that, and he said: appellant.

"Oh yes, you did,' and began to draw his pistol. Alvin M. Owsley, Asst. Atty. Gen., for the I got my knife out, but never did get it open. State.

I never had trouble of any kind before with him. Last night as I left the hall with a girl,

he told me he wanted to see me. I told him MORROW, J. Under an indictment for

I would be back in a few minutes." murder, appellant was convicted of manslaughter, and punishment assessed at con- Mary Bean testified that she had no such finement in the penitentiary for a period of conversation as that described with deceased,

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and that in answer to appellant's inquiry | ness was that the appellant had been told by while at the dance whether the deceased had him that the deceased had threatened to run made remarks to her about the appellant, her the appellant away from the dance. To justireply was that he had not done so. She also fy annulment of the verdict, there must be a denied that she had made such statement to reasonable probability that with the presence Lilton Davis. A pocketknife was picked up of the absent witness a verdict more favornear the eceased, after he fell, and there able to the appellant would have resulted. was a conflict as to its condition, whether the Covey v. State, 23 Tex. App. 388, 5 S. W. 283; blade was open or not. The homicide took Pruitt v. State, 30 Tex. App. 156, 16 S. place within a short distance of the dance W. 773; other cases, Branch's Annotated hall, and after the appellant left the dance Texas Penal Code, 8 319. Viewed in the light hall he met a witness, and inquired for the of the evidence on the trial, the probable deceased, and was told that he had gone home truth of the testimony of the absent witness with the girl Nina. Appellant proceeded in must appear. Casinova v. State, 12 Tex. App. the direction in which the deceased had gone, 554, and other cases, Brancb's Annotated and a few minutes later the shot was fired. Texas Penal Code, $ 319. Primarily these

[1] The indictment was filed in May, 1919. matters were for the trial court. Vernon's The trial took place in the latter part of De- Texas Crim. Statutes, vol. 2, p. 320, note 34, cember of the same year. The application and cases referred to. for continuance was to secure the testimony [3] It was by the affidavit of the appellant of Lilton Davis, whose residence was alleged alone that proof was made that the witness to be unknown. It was alleged that on a date would, if present, give the testimony alleged. not stated a subpæna had been issued for the If given, the evidence of the absent witness witness to Brown county, and had been re would have been in conflict with the testimony turned with the indorsement, “Not found in of the deceased and the witness Bean, and Brown county"; that a subpæna was issued corroborated by that of appellant alone. The on the request of the state to Cameron coun- court remained in session for 30 days after ty, and which was on December 4th, returned, the verdict was rendered, and almost that marked, “Not found after diligent search.” | long before the motion for new trial was overThe application was described as a “subse ruled. No affidavit of the absent witness or quent application,” and it appears from the other fact developed after the trial court's qualification of the bill of exceptions strengthen the contention of appellant that that at the preceding term of the court the the witness would give the testimony, or case had been continued upon the application would be present at another trial, or to enof the appellant for the same witness; that hance the probability of the truth of the alafter that time the appellant saw the witness leged evidence, or its affecting the verdict on in Texas City, Tex., and at that time the wit- another trial. ness promised that he would be present at the

[4] It is not within the province of this trial, but no process was issued for him. Under the facts, the action of the trial court in court to arbitrarily overturn the judgment of overruling the application cannot be made the the trial judge in overruling a motion for

new trial (Bronson v. State, 59 Tex. Cr. R. 20, subject of just criticism. There was an absence of the diligence which the law requires. 127 S. W. 175), and in the instant case no The witness had been served with no process.

measure or standard or changed condition is The appellant, after continuing the case for pointed out from which we can determine the absence of the witness, failed to embrace that the trial judge abused his discretion the opportunity to serve him with process in in deciding matters involved in the motion Texas City, and relied upon the promise of for new trial against the appellant. The burthe witness to make a voluntary appearance. den rests upon the appellant to overcome the His residence at the time of the trial was presumption favoring the correctness of the unknown, and we fail to discern upon what decision of the trial court, and this burden in facts a reasonable expectation of procuring the instant case has not been discharged. his testimony at a subsequent term could be

[5] From the state's standpoint, the evibased. Sinclair v. State, 34 Tex. Cr. R. 453, dence shows an unlawful homicide. It sug30 S. W. 1070; Roquemore v. State, 59 Tex. gests that the appellant had been attentive to Cr. R. 568, 129 S. W. 1120; Vernon's Texas the girl whom the deceased accompanied to Crim. Statutes, vol. 2, p. 319, note 30. The her home; that the appellant followed the circumstances were such that diligence would deceased, and sought the meeting with him, have demanded the prompt issuance of pro- and in the encounter was the aggressor. The cess for the witness when his whereabouts, deceased, by his testimony, negatived any after the continuance for his absence, became previous threats and any assault by him, known to the appellant. Todd v. State, 57 except in response to the demonstration by Tex. Cr. R. 26, 121 S. W. 506; Hamilton v. the appellant. The appellant's version puts State, 74 Tex. Cr. R. 219, 168 S. W. 537; threats into the mouth of the deceased, and Brittain v. State, 40 S. W. 297.

makes him the aggressor. An issue of fact

(222 S.W.) concur in the view that, accepting the testi- 6. Homicide

w 189

Course of conduct be. mony of the state's witnesses as true, the ver- tween deceased husband and defendant wife dict of the jury is not authorized by the evi

admissible. dence.

In prosecution of wife for killing her husWe find no error in the record, and order band, defended on ground of self-defense, trial the judgment affirmed.

court properly allowed to come before the jury the various difficulties, quarrels, threats, and encounters constituting the course of conduct between husband and wife; such matters including a conversation wherein the husband asked

his attorney for advice on killing his wife, being OTT V, STATE. (No. 5833.)

competent on the controverted question of selfdefense.

(Court of Criminal Appeals of Texas. May 19, Appeal from Criminal District Court, Dal1920.)

las County; Robt. B. Seay, Judge. 1. Homicide Com300(3) Instruction on self

Ida Ott was convicted of manslaughter, defense submitting converse of defendant's and she appeals. Reversed. theory not erroneous.

Alvin M. Owsley, Asst. Atty. Gen., for the In a prosecution of a wife for killing her State. busband, charge on self-defense, which in applying the law to the facts directed the jury MORROW, J. Under an indictment for specifically to the theory of the case on which defendant predicated her right of self-defense, slaughter, and punishment assessed at con

murder appellant was convicted of manheld not erroneous, though submitting the converse of defendant's theory that the mere be finement in the penitentiary for a period of lief she was in danger in the absence of rea

three years. sonable grounds did not excuse her.

The deceased, Andrew Ott, was the hus

band of the appellant. The tragedy occurred 2. Criminal law 829(5)-Refusal to instruct on one of the streets of the city of Dallas.

on defendant's right to arm self not errone- Six shots were fired by the appellant from ous in view of charge given.

a pistol. The first shot, fired while the deIn a prosecution for homicide, where no ceased was walking in front of the appellant, limitation was placed on the right of perfect took effect on the side of his head, back beself-defense in the charge, there was no error

hind his ear, and was a fatal one. He fell in refusing to instruct on the right of defendant at once, and other shots were fired into his to arm herself.

body. Deceased, a short time before the 3. Criminal law eww 806 (2)— Element of main homicide, had filed a suit for divorce against charge need not be repeated.

the appellant, and secured an injunction In a prosecution for homicide, the trial against her interference with him. He was court in the main charge having instructed that ļiving in adultery with another woman at defendant was in no event bound to retreat in the time he was killed. A long course of ill order to avoid the necessity of killing deceased, treatment was described by appellant in her it was not incumbent upon him to repeat it in testimony, in which she claimed that the dea special charge.

ceased first seduced her, and after marry4. Criminal law 419, 420(6)–Testimony of ing her required her to prostitute her per

attorney for husband killed by wife inadmis- son for his profit; that he had at one time sible as hearsay.

wounded her severely by shooting her with a In prosecution of a wife for killing her pistol, and had frequently threatened to take husband, evidence for defendant of an attorney her life. Some of these matters were confor the deceased husband as to what decedent troverted, the state introducing evidence to told him preparatory to bringing suit for divorce show that the appellant was shot accidentalagainst defendant, being explanatory of the details under which defendant had received a pis- ly with her own pistol while she was undertol shot wound, as she claimed, from decedent, taking to shoot deceased, and also that she while living with him some time before the bad threatened and attempted to kill him on homieide, held inadmissible as hearsay.

other occasions. She was a young woman.

She claimed that, frightened by his repeated 5. Witnesses w201 (2) - Testimony of hus- and specific threats to kill her, she obtained

band's attorney in prosecution of wife.for kill- an automatic pistol and learned to use it. ing husband not privileged.

On the morning of the killing she phoned to In prosecution of a wife for killing her hus- the place of business of the employers of deband, testimony of the attorney for the husband in his divorce suit that the husband asked ceased, desiring, as she said, to get one of him for advice as to what punishment would them to intercede with her husband, whom likely be meted out to him if he killed his wife, she still loved, and, ascertaining that her etc., who was defending on the ground of self- husband was not at the place of business, defense, held not excluded as a privileged com

she went there for the purpose of an intermunication between attorney and client. view with his employers, and that while on

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car.

her way she saw deceased walking on the , 972; Smith v. State, 81 Ter. Cr. R. 368, 195 street with a lady. As they were about to S. W. 595. meet, the lady walked across the street and [3] The court in the main charge having entered deceased's automobile. When they told the jury that the appellant was in no met, appellant said: “Who is your sweet- event bound to retreat in order to avoid the heart?" Deceased replied: "None of your necessity of killing the deceased, it was not damn business who she is. I told you not incumbent upon him to repeat it in a spe. to come down here, and God damn you I am cial charge. going to get my gun out of my car and blow [4, 5] The deceased, in his conference with your God damn brains out”—and, uttering his attorney preparing to bring suit for dithese words he started to run toward his vorce against the appellant, made certain

Appellant said: “Andrew don't do declarations which the appellant sought to that,” she following him and asking him to reproduce on the trial through the attorney, wait. He continued his course until he had and their exclusion as privileged matter is nearly reached the car, when, as she says, made the basis of complaint. Part of these "I pulled mry gun and fired.” The state's declarations were explanatory of the deeyewitnesses heard none of the conversation, tails under which appellant had received a but said that while the appellant was about pistol shot wound while living at San Anan arm's length behind the deceased she fired / tonio some time before the homicide. Aside the first shot, and when he fell she fired the from the question of privilege, we think the remaining shots, and then knelt down by his effort to prove the circumstances of the body, and uttered some endearing terms with transaction mentioned by the declaration of reference to him, apparently being very nerv- deceased in the presence of the witness was ous and excited.

not admissible, because obnoxious to the rule [1] The criticisms of the court's charge on against hearsay testimony. The other decthe law of self-defense, we believe, are with laration offered was to the effect that deout merit. This issue arose alone from ap- ceased sought to obtain the legal advice of pellant's testimony, and, in applying the law the witness as to what punishment would to the facts, the mind of the jury was di- likely be meted out to him in the event he rected specifically to the theory of the case killed his wife, and that in this connection upon which the appellant predicated the deceased had expressed his belief to the witright of self-defense. The court said: ness that in the event he should elect to kill "Now if you believe from the evidence, or

his wife, a jury would not affix his punishhave a reasonable doubt, that at the time the ment any greater than continement for five defendant killed the deceased that the deceased years; that the witness advised against such had started across the street in the direction a course.

We think this statement was not of an automobile, and that he had said he was protected by the rule which excludes privgoing to get bis pistol and kill the defendant, ileged communications between attorney and and if it reasonably appeared to the defendant client. Ormon v. State, 22 Tex. App. 604, 3 that the deceased was about to attack her in S. W. 468, 58 Am. Rep. 662; Id., 24 Tex. App. such manner that it reasonably appeared to her, as viewed from her standpoint, under all facts 495, 6 S. W. 544; Everett v. State, 30 Tex. and circumstances within her knowledge, that | App. 682, 18 S. W. 674; Underhill on Crim. she was in danger of losing her life or suffer- Evidence, $ 175. ing serious bodily injury at the hands of the In the case of Ormon v. State, the accused deceased,” etc.

complained to the attorney that one had

been guilty of insulting language toward a [2] In submitting the converse of appel- female relative, and made inquiry as to the lant's theory, to the effect, in substance, that extent of the culpability in the event he slew the mere belief that she was in danger in the utterer of the language. The attorney the absence of reasonable grounds upon read to him the statute on the subject. Subwhich to base such belief, testing the rea- sequently, upon his trial for murder, the sonableness of the grounds as viewed from state was permitted to prove this transacher standpoint at the time, would not excuse tion, the court in substance recognizing as her, we think there was no error. Appellant the rule existing in criminal cases that the has referred us to no precedent supporting communications must be in the course of her contention that in this respect the court's legitimate professional employment, and not charge placed upon the appellant's right of communications made for the purpose of beself-defense an unwarranted limitation. See ing guided in the commission of an offense, Tillery v. State, 24 Tex. App. 251, 5 S. W. and that these rules obtain notwithstanding 812, 5 Am. St. Rep. 882; Ruling Case Law, the innocent purpose of the attorney giving vol. 13, p. 816. There being no limitation the advice; in other words, declaring that placed in the charge of the court upon the the public policy which prevented the disright of perfect self-defense, there was no closure of confidential cominunications beerror in refusing to instruct the jury upon tween attorney and client would not seal the right of appellant tv arm herself. Willi- the lips of the attorney who was consulted

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