1. Murder — Accomplice Witness — Charge — Circumstantial Testimony. — On a trial for murder, where an accomplice eye-witness swears directly and positively to the facts of the killing, and the evidence further shows threats of defendant to kill the accomplice in case of betrayal by her, Held, that the case was not one of circumstantial testimony requiring the court to charge on circumstantial evidence.
2. Charge — Special Instructions. — It is not error to refuse special, requested instructions where the law of such instructions is fully submitted in the general charge. 3. Continuance — Sufficiency of — Practice on Appeal. — An application for continuance must show diligence; the testimony expected to be proved must not be stated in vague and general terms; it must be pertinent and material to the issues in the case. But if it be conceded that an application is good in each of these particulars, still the court, on appeal, will not reverse for error in overruling it if the facts stated are such as, in the light of the record, do not require a reversal, and especially so where it is shown that the material facts alleged could have been proved by witnesses present.
4. Bill of Exceptions — Indefinite, When. — A bill of exceptions reserved to evidence is too indefinite to be considered if it fails to show that the evidence was produced before and went to the jury. Following Burke v. The State, 25 Texas Crim. App., 172.
5. Evidence — Bloody Clothing — Codefendants — Accomplice Testimony. — Where the evidence discloses that defendant and another acted together in the perpetration of the murder, bloody clothing taken from the possession of the codefendant the day after the murder is admissible evidence against defendant, and especially so where it is corroborative of the testimony of an accomplice inculpating such other party in the murder.
6. Jury Law — Special Venire — Practice. — It is provided by statute (Code Crim. Proc., arts. 611, 612), that when the special venire is exhausted the court shall order the sheriff to summon from the body of the county any number of persons it way deem advisable for the formation of the jury, and a defendant has no right to demand that the regular panel for the week be placed in the jury box from which to complete the panel. Following Weathersby v. The State, 29 Texas Crim. App., 278.
7. Murder of First Degree — Evidence. — See facts which in the opinion of the court are amply sufficient to support a conviction for murder of the first degree, with a life term in the penitentiary.
DAVIDSON, JUDGE.
This is a conviction of murder in the first degree, the punishment being assessed at a life term in the penitentiary. The evidence does not bring this case within the rule of circumstantial evidence. The accomplice swears directly and positively as eye-witness that defendant committed the murder. The threats of defendant to kill the accomplice if she betrayed him were also proved. The court did not err in refusing the requested charge submitting the law applicable to circumstantial evidence.
Nor did the court err in refusing defendant's requested instructions in regard to the testimony of the accomplice and necessary corroboration. The charge given by the court fully submits the law applicable to this phase of the case. It is not error to refuse special instructions, though they embody correctly the law, if the charge given the jury presents the law controlling the subject matter of such special instructions. Willson's Crim. Stats., sec. 2254. The charge as given is not a charge on the weight of the testimony, and we think it an admirable presentation of the law of the case.
The application for continuance was correctly refused. We deem the diligence wholly insufficient. But if it be conceded we are in error in this position, then the stated facts are not of that character, when viewed in the light of the record, which requires a reversal of the judgment. The testimony expected to be proved by the absent witnesses, much of it, is too generally and vaguely stated to require notice. Some of it is in relation to matters about which there was no issue, and all that part of the testimony relating to the actions and whereabouts of the codefendants Williams and Peterson could have been shown by them, the said Williams and Peterson, had the defendant desired their testimony. They had both been acquitted and were present to testify for defendant on the trial. The evidence shows very strongly that the three men were together on the night of the homicide and the next morning, and the accomplice is strongly corroborated in her testimony that the three committed the murder. If they were not participants, and were not with defendant at the murder, they could have so stated. The defendant should have used all the testimony favorable to him at his command. Why this was not done is not explained. We deem it unnecessary to go into a further discussion of the application for continuance.
The defendant objected to the request of the State, made by Alex Erichson, to produce some handkerchiefs and a coat found on the person of Peterson the day after the murder, the garments being bloody. Having failed to show the production of the garments in evidence, the bill is too indefinite to be considered. Burke v. The State, 25 Texas Crim. App., 172; Jacobs v. The State, 28 Texas Crim. App., 79; Jackson v. The State, 28 Texas Crim. App., 143. This witness was also permitted to testify that a shirt and towel, damp and bloody, were taken from the possession of Williams the day after the murder. The testimony was clearly admissible. Williams was shown to have acted with Peterson and defendant in perpetrating the murder, and this evidence was corroborative of the accomplice's testimony that Williams was present at the murder, and assisted defendant and Peterson in carrying off the body. The wounded man bled profusely.
We do not think the court erred in excluding Fagan's evidence. Lupi had not testified on the trial of Williams and Peterson, and Fagan, one of defendant's counsel, proposed to testify, that he "sent Peterson in search of Lupi to rebut the suspicions raised by the State's cross-examination of Lupi." How "suspicions raised by the State's cross-examination of Lupi" could have been suggested before the witness was ever known in the case is not easily understood.
Defendant's attorneys "demanded it as a right" that the regular panel for the week be placed in the jury box from which to complete the jury for his trial. This was refused. This ruling was correct. The statute provides, that when the special venire is exhausted the court shall order the sheriff to summon any number of persons that it may deem advisable for the formation of the jury. These are to be selected from the body of the county. Code Crim. Proc., arts. 611, 612; Weathersby v. The State, 29 Texas Crim. App., 278. The evidence amply supports the conviction. The accomplice Whitten is corroborated fully as to defendant's connection with the crime, and as a participant in the murder.
The judgment is affirmed.
Affirmed.
Judges all present and concurring.