1. Continuance — New Trial. — Where the overruling of an application for continuance is one of the grounds urged for a new trial, and it appears from the evidence adduced on trial that the proposed absent witness was not at the place stated in the application for continuance, and that if he should testify as set forth in said application, his testimony would not probably be true, held, the continuance was properly refused, and motion for new trial based thereon properly overruled.
2. Murder — Evidence — Insulting Language Concerning a Female Relative. — On a trial for murder, where defendant offered to prove that several years before the homicide, and before defendant's marriage, deceased had remarked to a third party that he believed he could have, and intended to try to have, carnal intercourse with the woman defendant afterwards married: Held, the evidence was too remote, and besides it appeared never to have been communicated to defendant prior to the homicide. Following Ex Parte Jones, 31 Texas Criminal Reports, 422.
3. Same — Statements of Defendant — Res Gestæ. — On a trial for murder, where defendant offered to prove the statement he had made to his mother, after he had ridden seven miles from the scene of the killing, and it did not appear what interval of time had elapsed, held, the evidence was not brought within the rule of res gestæ, and was properly rejected.
4. Charge — Reasonable Doubt Between Degrees. — On a trial for murder, where the charge of the court instructed as to the reasonable doubt between the different degrees of homicide, and further instructed generally as to a reasonable doubt of guilt upon the whole case, held, the charge upon this subject was amply sufficient.
5. Same. — On a trial for murder, where the jury were instructed as to the testimony, that "you should reconcile all conflicts in the testimony if you can; but if you can not, you must decide which of the testimony is entitled to the greater credibility and weight; and in so determining you may consider the intelligence, interest, apparent bias or prejudice, if any, of the witnesses, as well as their manner of testifying;" and it was objected that said charge called attention directly to the testimony of the defendant and his wife, the witnesses most interested: Held, the objection was not tenable, and the charge was not erroneous. Following Adams' case, 20 Southwestern Reporter, 548; and Brown v. The State, 2 Texas Criminal Appeals, 115.
6. New Trial — Prejudiced Juror. — On a motion for new trial, where the ground was that a juror had expressed an opinion as to the guilt of defendant, but the party making affidavit to that effect in a subsequent affidavit expressly stated otherwise, and the juror himself expressly denied the statement, and averred that he had neither formed an opinion nor known anything of the facts prior to the trial, held, that the overruling of the motion was correct.
7. Verdict. — Where, in writing the word "twenty" in a verdict, the letter "w" might be mistaken for the letter "m," held, the verdict will not be disturbed where the intention of the jury is too plain and patent for discussion.
DAVIDSON, JUDGE.
Appellant was convicted of murder in the second degree, and his punishment assessed at twenty-five years in the penitentiary.
1. The application for continuance was properly overruled, as was the motion for new trial based upon the refusal of the continuance. The evidence adduced upon the trial shows the absent witness was not at the point designated in said application, and had he testified as set forth therein, his testimony would not have been probably true. Every eye-witness to the transaction shows that the deceased was not advancing upon defendant, and that he had no knife in his hand at the time he was shot. The parties reaching the body immediately after the shooting found deceased's knife in his pocket, and closed. Inasmuch as he was shot through the heart or near it, and twice through the brain, it was impossible that he could have closed the knife and returned it to his pocket after being shot.
2. Defendant offered to prove by Goodwin that in 1887 deceased remarked, that he believed he could have carnal intercourse with Jennie Bishop, and that upon the first opportunity he intended to try and have such intercourse. This was some years before she married the defendant; and besides, the imputed statement was never communicated to defendant, and was too remote to have any bearing on the case. The court did not err in refusing this evidence. Ex Parte Jones, 31 Tex. Crim. 422 [ 31 Tex. Crim. 422].
3. He further offered to prove by his mother the statement of himself made to her, to the effect that he killed deceased to save his own life. Defendant had ridden seven and one-half miles from the scene of the homicide before making the statement. He was pursued by the sheriff and posse; he avoided them by deflecting from the road and hiding till they passed; and the court states the evidence fails to show how long thereafter it was before he saw his mother and made the statement sought to be introduced. The court was clearly right in rejecting the proffered evidence. It was not brought within the rule of res gestæ, and there was enough evidence of deliberation on his part.
4. Exception was reserved to the charge, because it failed to charge the reasonable doubt" between manslaughter and self-defense. The court gave this charge as between murder in the first and second degrees, also between murder in the second degree and manslaughter, and further instructed if there was a reasonable doubt of defendant's guilt, he should be acquitted. This was sufficient.
Even had the court failed to instruct the jury to apply the reasonable doubt between the degrees of culpable homicide charged upon, such omission would not have been error where the court applies such doubt to the whole case. Hall v. The State, 28 Texas Cr. App., 146; McCall v. The State, 14 Texas Cr. App., 353; Powell v. The State, 28 Texas Cr. App., 393; Ashlock v. The State, 16 Texas Cr. App., 13; Bennengfield v. The Commonwealth, 22 S.W. Rep., 1020. After informing the jury that they were the exclusive judges of the credibility of the witnesses and the weight to be given to the testimony, the court further said: "You should reconcile all conflicts in the testimony if you can; but if you can not, you must decide which of the testimony is entitled to the greater credibility and weight; and in so determining you may consider the intelligence, interest, apparent bias or prejudice, if any, of witnesses, as well as their manner of testifying."
This charge was objected to, because "it was directly calling the attention of the jury to the testimony of defendant and his wife, who were the parties most interested among the witnesses who testified." The very charge here complained of 'was held not to be erroneous in Adams' case, 20 Southwestern Reporter, 548; Brown v. The State, 2 Texas Criminal Appeals, 115.
A ground of the motion for new trial was based upon the fact that one of the jury, Hagar, had expressed an opinion as to the guilt of defendant. This allegation was supported by the affidavit of Mrs. Dunlap. In a subsequent affidavit she stated that said juror "did not express any opinion as to the guilt of defendant;" and the juror himself also denied the expression of such opinion, and further stated that he had formed no opinion in reference to the matter, and knew nothing of the facts prior to the trial. Upon a trial of the issue the court decided adversely to the motion, and we think correctly. Shaw v. The State, ante, 155.
A contention is made that the verdict is too vague and uncertain to form the basis of the judgment rendered, in that the word "twenty" is so written that the letter "w" appears to be "m." An inspection of the original verdict, sent up in the record, will hardly support this contention. But if it did, the position is not maintainable. The intention of the jury is too plain and patent for discussion. For our views in regard to this matter, see Birdwell's case, 20 Southwestern Reporter, 556; Roberts' case, just decided at this term.
We deem it unnecessary to enter into a lengthy discussion of the charge. Suffice it to say, that an investigation of it discloses that every issue was fairly and fully submitted to the jury.
The defendant's rights were guarded with unusual care throughout the trial. The judgment should be affirmed, and it is so ordered.
Affirmed.
Judges all present and concurring.