1. Murder — Continuance — Communicated Threats. — On a trial for murder, it is not error to overrule an application for a continuance for absent witnesses to prove communicated threats, where it appears that one of the proposed witnesses was present at the trial and was not called by defendant to testify, and where the threats made by deceased were proved by other witnesses.
2. Same — Mutual Combat — self-Defense. — On a trial for murder, evidence of communicated threats can have no bearing favorable to the defendant where the evidence clearly shows that the parties agreed to a mutual combat without arms or weapons, the question of self-defense being thereby eliminated from the case.
3. Same — Charge — Matter of Fact and Not of Law — Harmless Error. — On a trial for murder, where the evidence showed an agreement for a mutual combat without weapons, and that defendant seized a large stick and slew his adversary; and the court, in effect, instructed the jury, that if "one party take an undue advantage of the other and kill him with a deadly weapon, such killing will ordinarily be murder on the part of the slayer," Held, erroneous, because whether such killing is murder or manslaughter is not matter of law, but depends upon the facts, and is to be solved by the jury from the facts. But held, further, that such error becomes harmless, and is cured by subsequent portions of the charge which properly applied the law to the facts, and especially so where defendant could not have been injured by said charge, because he was convicted of manslaughter and not murder.
4. Same — Self-Defense — Retreat. — On a trial for murder, it is not error for the court to refuse to charge upon self-defense and the law of retreat where the evidence does not raise these issues.
DAVIDSON, JUDGE.
Application for continuance was made for the testimony of three absent witnesses, by whom appellant expected to prove communicated threats made by deceased to whip him, "if he had to kill him in doing so." One of the witnesses appeared during the trial, but was not called on to testify. Why this was not done is not explained. The combat being a mutual one, this testimony was not material in this case. Deceased proposed to appellant to retire to the "woods" and settle their grievances. The defendant accompanied him to the designated place, seized a large stick, and with it slew his adversary. The deceased was unarmed, having left his gun at the house. The evidence clearly discloses that the combat was to have been without arms or weapons. This being the case, self-defense was eliminated from the case, and in view of the fact that the conviction was for manslaughter, with the minimum punishment assessed, we are unable to appreciate any bearing this evidence could have had upon the case favorable to the defendant. Pruitt v. The State, 30 Texas Crim. App., 156.
But if the evidence was material, it could have been shown by the witness attending the trial. Not only so, but threats made by deceased were in fact proved on the trial. These were not denied or contradicted by the State, nor were they a disputed issue on the trial. There was no error in refusing the application. The new trial on this ground was properly refused.
The court instructed the jury: "Where the parties engage in mutual combat and fight together willingly with deadly weapons in a manner calculated to cause the death of both or either, the killing, should it occur, will ordinarily be murder on the part of the slayer; and where parties agree to fight in mutual combat with their hands and fists, in which no deadly weapons are to be used, and one party take an undue advantage of the other, and kill him with a deadly weapon, such killing will ordinarily be murder on the part of the slayer." Exception was reserved to the charge. Appellant was acquitted of murder. This charge was upon the effect of evidence, and states that effect to be a rule of law in ordinary cases. Whether such killing is murder in either degree or manslaughter must depend upon the facts attendant upon the case on trial. It is not matter of law in either case. The condition of the mind, in such state of case, is not fixed by law, but must be ascertained from the facts adduced in evidence. Whether the killing occurs in mutual combat or otherwise, the nature, character, and degree of such homicide will depend upon the condition of the mind of the slayer; and this must be ascertained from the circumstances of the particular case. This condition of the mind, whether cool and sedate, or inflamed and excited, or aroused to such sudden passion as to render it incapable of cool reflection, induced thereto by an adequate cause, is not to be determined by the law as matter of law, but is to be solved from the facts by the jury. These were general remarks by the court. Following these remarks the court properly applied the law to the facts of the case. Was it possible for the remarks of the court to have injured appellant? That they did not affect the jury is evident, because, manslaughter, and not murder, was the offense found, and no honest jury could have acquitted or found less than manslaughter under the circumstances of this case. Self-defense and the law of retreat are not issues in this case under the evidence before us.
The judgment is affirmed.
Affirmed.
Judges all present and concurring.