My brethren have affirmed the judgment, holding that the question of self-defense was not suggested by the evidence. To this I can not agree. Whatever this court may think or whatever the jury may have thought or the trial court may have thought about the cogency or truthfulness of the testimony, the facts set out in the application for continuance expected to be shown by the absent witness do suggest the theory of self-defense. Defendant testified to the self-defensive theory, and if the testimony *Page 80 of his son had been before the jury that theory would have been decidedly strengthened. It seems that on a previous trial the son did testify before the jury, and they failed of conviction. I do not care to enter into a review of the record, as it is very voluminous, and the opinion states with sufficient fairness the main facts of the case. An inspection of the facts as set out in the opinion of the majority show with sufficient cogency, in my judgment, that the issue of self-defense was in the case. The trial court so believed, and in deference to that belief charged the jury in regard to the issue. This was the first application, and so the question of cumulative testimony could not be considered. That the motion to continue ought to have been granted it seems to me is more urgent by reason of the fact that the defendant, being the interested party, alone testified to his defensive theory. His son was an eyewitness, and while he might be considered by the jury as also interested in the outcome of the trial, and therefore testifying in behalf of his father, still where a defendant is his only witness on an important issue, and other testimony can be secured to the same effect, the application for continuance ought not be judged as critically as where defendant is not forced to rely upon his own testimony. The record is without question that the absent boy was an eyewitness to the killing and saw the whole transaction, because the eyewitnesses for the State place him at the scene of the homicide, and in close juxtaposition to his father and the whole transaction. It is conceded, as I understand this record, that the boy would have testified to the facts set out as he had already done so on a previous trial. It occurs to me that wherever a man is being tried for his life or liberty under the circumstances detailed in this record, he at least should not be forced, over his application for continuance, to go before the jury until he has had reasonable opportunities of having his testimony; especially so when the testimony comes from an eyewitness to the transaction and is directly opposed to that introduced by the State. Appellant was legally entitled to have this testimony before the jury, and to be weighed by them in passing on his guilt or innocence of the homicide.
There is another question that occurs to me ought to reverse the judgment. Back of the homicide, leading along up to it, ill feeling is shown to have existed between defendant and deceased in regard to some reports about the wife of deceased, which reports were imputed to the wife of appellant. The record is bristling with this testimony as being the cause of much of the trouble between the parties. There had been criminations and recriminations, discussions, explanations, fights and litigation and ill will, more or less hot blood engendered on account of it. In this attitude of the case appellant offered his wife as a witness to prove by her that she did not originate and make the statement imputed to her, but she was not permitted to testify. I think this was most clearly error. These matters had already been used before the jury against accused, and now when he seeks to explain them or enter denial, he is not permitted to do so. I had been under the impression *Page 81 that it was a fundamental principle of evidence, where one party introduces damaging evidence against the other, the party against whom it was introduced could meet it with any legal testimony at his disposal to show the falsity of the evidence adduced against him, or to explain it away or to modify and weaken its force and strength. Therefore I think the wife should have been permitted to testify to the matters sought to be elicited from her. For these reasons I think this judgment should be reversed.
Filed June 10, 1904.