A motion for rehearing was submitted in this cause on last Wednesday, December 20, 1916, and at the same time appellants' counsel also submitted a motion in which they alleged that Judge Harper had ceased to be a member of the court, by reason of the fact that he had formed a partnership with Hudspeth Dale of El Paso, and had been actually engaged in the practice of law since November 20th.
Were each and every allegation in the motion true, Judge Harper's membership in this court would not be vacated thereby. It is true that article 334 provides that "No judge of the Court of Criminal Appeals shall be allowed to appear and plead as an attorney in any court of record in this State"; and had Judge Harper appeared in any court of record and attempted to plead as an attorney, it would have been improper for him to have done so, but this would not have vacated the office, and doubtless the judge of a court of record in which he attempted to appear and plead would not have permitted him to do so. Judge Harper has appeared and attempted to plead in no court of record and will not do so until his term of office expires. It is true he went to El Paso, contemplating locating in that city, and that he did form a partnership with Hudspeth Dale while there to engage in the practice of law, and the firm was retained in several cases to be tried after his term of office expires, but while there, neither he nor any member of the firm engaged in the trial of any case in any court of record in which he was interested. It is customary for officials, when retiring from office, a short time before doing so, to form their new *Page 147 associations, and to make necessary arrangements in regard to their future, and this Judge Harper has done, and nothing more.
In regard to the merits of the motion for a rehearing, we have given it most careful thought and painstaking study. Mr. Eugene Smith, whom the facts show, someone murdered on his road home on the night of October 2d, came to town that day, bringing two bales of cotton and a load of cotton seed. He sold both on that day. It is shown that at least one of appellants, Rocindo Bonada, saw him on his way to the city with the cotton and cotton seed. It is shown that the two appellants were seen together at Richards' saloon in the City of Austin in the afternoon; that they remained constantly together the remainder of the evening and spent the night together at Gilbert's gin; the State next traced them to Miller's grocery and beer saloon after dark; Mr. Smith being in Miller's place at the time. There Bonado attempted to buy some cheese, but he could not find any money, and appellant Marta remarked to Bonado: "Oh, you have got no money," and Mr. Miller took the cheese back. Both appellants are shown to have been drinking, Bonada apparently more than Marta. Several say Bonada was drunk. They left Miller's. The next place they are traced to by the testimony is the saloon of Lush Flow (known as Hunter Hill's place) on the Webberville road, some three miles from the courthouse. It is shown by the testimony of Lush Flow and Hunter Hill that appellants purchased some beer at this place and two cigars (Cubanola brand); Mr. Flow testifying that appellant Marta was the person who paid for the things purchased. They remained there until the saloon was closed, and they are next traced to White's restaurant and saloon, a little farther on the Webberville road, the way Mr. Smith would go in going home. When they arrived at White's place it is shown to be after 9:30 at night.
At the time Mr. Flow closed his saloon, and appellants left there to go to White's place, Will Eppright testifies he also left the saloon of Mr. Flow, and came towards Austin, and that he met Mr. Smith in a wagon by himself, some four hundred yards this side of the saloon; that Mr. Smith was then driving along slow on his road home. Juan Laerma testifies that he overtook appellants near where the road forks, one going to Webberville and the other fork to Pecan Springs, and held a conversation with them; that while he, Laerma, and appellants were at the forks of the road talking, Mr. Smith came driving along, and appellants climbed in the back of his wagon. Laerma says he galloped on off, and before he got very far he heard two shots. When Mr. Smith was found, it was on the side of the road, not a great distance from where those roads forked, and he had been shot twice, one bullet entering just back of and just below the left ear; the other bullet entered the jaw and came out at the right eye. Physicians say either and both wounds were necessarily fatal.
Sheriff Matthews went out that night and brought Mr. Smith to the Seton Infirmary, where he later died. The sheriff and other officers *Page 148 and citizens went back to the scene of the homicide, arriving there about daylight next morning. Right near the forks of the road the officers say they discovered where the brakes of the wagon had been thrown on; that they could tell this by reason of the wheels dragging, and they followed this dragging wagon wheel to where Mr. Smith was found on the side of the road and saw blood along the road. Beyond the point where Mr. Smith was found, the wagon wheels ceased to drag, evidently the brake having been thrown off. The team and wagon of Mr. Smith was found that night near where the Webberville and Manor roads fork with their heads turned towards Manor. The officers say the next morning they followed this wagon track from where Mr. Smith lay to a point on the Webberville road where this team turned into the Manor road, and they saw the tracks of two persons, having the appearance of having jumped, describing the track where it hit the ground, and the way it slided. From this point they say they followed the tracks of these two men to Gilbert's gin, and there they found one whole Cubanola cigar and the stub of another. At the gin the tracks separated, and a portion of the men followed one set of tracks and the other men followed the other set of tracks. Those who followed the set of tracks leading towards Littlepage's store found appellant Rocindo Bonada at this store, apparently buying some confections for his breakfast. They arrested and searched him and found on him a $5 bill and some silver, and blood was found on his clothing — on his hat, on his shirt, on his pants and on his shoes, and some under his finger nails Those who followed the other track from Gilbert's gin, traced appellant Juan Marta and arrested him. Mr. Geo. Gilbert testified he thought there was blood on both trousers legs, and Woody Gilbert says there was blood on appellant Marta's collar — a bright red spot.
After the State had made its case by the above facts and circumstances, both appellants took the witness stand; they both admitted they were in Austin on that day, and in places the State had placed them; they both admitted they were at Miller's, and Bonada attempted to buy cheese and could find no money on his person, and that Marta remarked to him he had no money; they both admit they were at Lush Flow's saloon and bought the two cigars, they claiming though that Bonada had found his money and paid for the drinks, while Lush Flow says Marta paid for them; they admit they were at White's saloon and restaurant, and shortly after leaving there they met Laerma in the road and talked to him, but deny most emphatically they got in Mr. Smith's wagon or that he came along; they admit going down this road, but they say it was after Mr. Smith had been shot and was lying on the side of the road, and they saw the body as they passed down the road; they admit they went down this road and went to Gilbert's gin and spent the night there, and the cigars that were found there were the ones they had purchased the night before at Flow's. They admit they separated there and traveled the road from which *Page 149 they were traced the next morning to the point where they were arrested. So the only material difference in this portion of the testimony is, did Smith come along as testified to by Laerma and appellants got in his wagon while he was alive and well, and were two shots fired thereafter, or did Laerma meet them after Smith had passed this point and they traveled down the road after Smith had been shot, as they testified.
Appellant Bonada admits he had blood on his clothing as testified to by the officers when arrested next morning, but says his nose had bled while he was in Austin the evening before, and this caused the blood to be on his clothing and hands. He admits he tried to buy the cheese at Miller's the night before and could not find his money, and admits he had a five dollar bill and some silver on his person when arrested; he testifies he was drunk when in Miller's place of business and his money was in an inside pocket, and he offers testimony that he was paid some money by Charles Bernard on the day he was in Austin.
Juan Marta denies he had any blood on his clothing, as testified to by State's witnesses, and he had his pants examined by Dr. Graham, who applied tests, and testifies there was no blood on Marta's trousers, but the collar testified to by Woody Gilbert as having a "bright red spot of blood on it" was not carried to the physician for examination.
Thus it is seen that while the testimony offered by appellants would tend to explain many of the incriminating circumstances, yet the jury was not bound to accept their explanation as true, and evidently did not do so, and if there is any credence to be placed in the testimony of Juan Laerma, and the testimony of the officers as to the wagon tracks, and then the tracks of appellants to Gilbert's gin and then to the point where they were arrested, it is not surprising they did not do so; at least this court would not be authorized to disturb the verdict on that account.
Appellants again insist there was error committed on account of refusing to grant a continuance on account of the absence of witness Eugenio Rios, and we were in error in holding that no sufficient diligence was shown. The indictment was returned against appellants on December 24, 1915; the case was not tried until March 6, 1916. No subpoena was issued for the witness Rios until February 22, and it was returned "Witness not found" on March 4, 1916. No additional process was applied for or issued for the witness. In regard to this witness, appellants state in their motion: "The witness Eugenio Rios was a resident of Travis County during the fall of 1915, and so far as these defendants have been able to ascertain is still a resident of the county. In this connection defendants would show that while their application for a subpoena was for Eugenio Rios, the subpoena issued for Eugenio Reyes; that there were Mexicans residing in Travis County and also in Bexar County by the name of Rios, and defendants believe by the next term of court they will be able to locate Eugenio Rios." This motion was overruled on March 6th. The motion for a new trial *Page 150 was not heard until April 8th — a month later — and in this motion appellants show they had still been unable to locate this witness. Under such circumstances there was no sufficient diligence, for in it neither the application for a continuance, nor in the motion for a new trial is it shown appellants knew the location of the witness, nor could they hold out to the court more than a vague and indefinite promise that they might be able to locate him. In addition thereto all appellants state they expect to prove by the witness is that he says the witness would testify "that about 5 o'clock in the afternoon he saw appellant Bonado come out of a saloon on East Sixth Street, and that said appellant was intoxicated, and his nose was bleeding and dripping on his clothing, and he (witness) loaned said appellant a red bandanna handkerchief to be used by said appellant to prevent blood from dropping on his clothing." The State shows by Mr. Miller that appellant Bonada was at his saloon at a later hour, and there was then no blood on his clothing; the State shows by Hunter Hill and Lush Flow that both appellants were at Flow's saloon at 9:30 the night of the homicide, and the witnesses testify there was then no blood on Bonada's clothing; the State shows that after 9:30 at night and just a short time prior to the homicide appellants were at Dick White's saloon and restaurant, and White says appellants then had no blood on their clothing. Will Eppright testifies he saw both appellants at Dick White's, and that he danced with Juan Marta, and that he saw no blood on the clothing of either of them. The next morning when the officers arrested appellant Bonada he had blood on his hat, shirt, trousers, shoes and under his finger nails; they took a red bandanna handkerchief off of him, and they each and all swear it had no blood on it. So he did not use a red handkerchief furnished him by Rios to "prevent blood from dripping on his clothing." A white handkerchief was also found on his person, and it had no blood on it. Under such circumstances no one can say that such testimony would have materially changed the result, and the rule in this court has always been that it is only in case where from the evidence adduced on the trial, the court is impressed with the conviction, not merely that the defendant might possibly have been prejudiced by such ruling, but that it was reasonable probably that if the absent testimony had been before the jury, a verdict more favorable to the defendant would have resulted. Covey v. State, 23 Texas Crim. App., 388; Gaines v. State, 67 Tex.Crim. Rep., 150 S.W. Rep., 199; Hart v. State, 61 Tex.Crim. Rep.; Lane v. State, 59 Tex. Crim. 595; Boyd v. State, 57 Tex.Crim. Rep.; Land v. State, 34 Tex.Crim. Rep..
The next contention is, we erred in holding that there was no error in overruling the application for severance. We fully appreciate and recognize that a severance is a matter of right in this State, when properly and seasonably applied for. In this case, however, it is made apparent by the bill of exceptions that when the case was called for trial, no request for a severance was made. When the application for *Page 151 a continuance was overruled, the special venire was called, a portion of the jury had been selected and sworn, and appellants had exhausted eleven of their fifteen challenges, a request was made for severance. Certainly at that time the severance was not a matter of right. (Hooper v. State, 72 Tex.Crim. Rep., 160 S.W. Rep., 1187; Burton v. State, 65 Tex.Crim. Rep., 146 S.W. Rep., 186; Crawford v. State, 74 S.W. Rep., 552.) And at most, under the facts of this case, — a portion of the jury being empaneled, — it was a matter addressed to the sound discretion of the court, and we can not say the court abused the discretion confided by law to him. The State traced them together from the time they left town, until after Mr. Smith was assaulted, and according to its evidence placed them both in his wagon just before the homicide. The defendants both testify and both admit they were together from the time they left Austin until next morning, although they deny getting in Smith's wagon. One had no defense, according to the record before us, that was not a defense for the other. The request for severance coming as it did, after announcement of ready for trial, the partial selection of the jury, and the exhausting of eleven of the fifteen challenges allowed by law, came too late to make it a matter of right.
In a number of other bills they complain of what appellants term leading questions. They do not claim that any of the testimony adduced by such questions was inadmissible, but only it was elicited by leading questions. Appellants seem to labor under the impression that the court must have qualified each bill and stated why he permitted the questions to be asked that are complained of. Such has never been the rule in this State, but, on the contrary, as stated by Mr. Branch in his Penal Code, section 159, the rule is: "A bill of exceptions taken because of leading questions must affirmatively exclude the idea that under the peculiar circumstances of the particular case the court was justified in permitting the State to ask leading questions, andif it does not do so, no error is shown," citing Montgomery v. State, 4 Texas Crim. App., 140; Henderson v. State, 5 Texas Crim. App., 134; Harris v. State, 37 Tex.Crim. Rep.; Payner v. State, 40 Tex.Crim. Rep., 47 S.W. Rep., 977; Hamilton v. State, 41 Tex.Crim. Rep.; Carter v. State, 59 Tex. Crim. 73, and a number of other cases. Measured by this standard, each and every one of appellants' bills are insufficient to present the questions for review. As illustrative of the bills, we will copy the first one in the record on this question:
"Be it remembered that on the trial of the above styled and numbered cause in this court while the State's witness John Miller, a witness for the State, was on the witness stand, he was interrogated on his direct examination by Judge Linden, counsel for the State, as follows:
"I will ask whether at the time they, the defendants, were in your place of business you observed any blood upon either of them? To *Page 152 which question defendants objected on the ground that same was leading, which objection was by the court overruled and said witness stated that he had not observed any blood upon either of the defendants, to which action of the court in permitting said question and answer, the defendants excepted and herewith tender their bill of exceptions No. 3 and ask that the same may be signed and made a part of the record in said case, which is accordingly so done."
This is as full and complete as any on this question, and we could have passed them out on this ground, but rather than do so, we took the record and demonstrated, in our opinion, there was no error in the ruling of the court, had the matters been properly presented. This witness' testimony shows he testified there were electric lights in his place of business, and the appellants were just across a counter from him, only two and one-half feet. That appellant Bonada had sought to purchase cheese, and searched his clothing to find money to pay for it, and failed to find any; that appellant Marta remarked, "Oh, you have no money," when he, witness, took the cheese and placed it back on the shelf, and he was then asked, "whether at the time they, the defendants, were in your place of business you discovered any blood on them?" Under such circumstances this was not an improper question, and there was no error in permitting the witness to answer, "I did not observe any blood on either of them."
We could take each bill complaining of leading questions and demonstrate its incompleteness to present any error, and take the facts as shown by the record and demonstrate that under the peculiar circumstances the questions were not improper, and elicited no improper answer, but as the bills relating to this matter are in the form of the above bill, we do not deem it necessary to do so more extensively than we did in the original opinion.
As shown in the original opinion, appellants had several bills complaining of the remarks of the Hon. John W. Hornsby, who assisted in the prosecution. The bills themselves show that in each instance appellants' exceptions were sustained, and the jury instructed not to consider such remarks, and in some of the bills it is stated "the court reprimanded Mr. Hornsby." The remarks complained of are set forth in the original opinion, and we do not deem it necessary to do so again. Appellant during the trial asked no further or different instructions, and in the absence of requested instructions the rule is, the remarks must have been highly inflammatory and prejudicial, or the court's action in withdrawing the remarks and instructing the jury not to consider them, in the absence of any request for written instructions, will be deemed sufficient. In Davis v. State, 54 Tex. Crim. 236, is discussed at length the question of when argument of counsel will be ground for reversal, although no written instructions were requested, and the writer would not be understood as varying from the rule as there announced; but in that case no instructions not to consider the remarks were given, while in this case they were given by *Page 153 the court, without written instructions being requested and counsel reprimanded, and in addition thereto the court embodied in his general charge the following:
"Neither counsel for the State, nor defendants' counsel, have any right to refer to or discuss any fact or circumstance not in evidence, or to in any way appeal to you except from the testimony in evidence and the law as given you in the charge of the court, and you must not consider or in any way be influenced by any remark or the discussion of any fact by the counsel for the State, or defendants' counsel, when such fact or circumstance is not in evidence." Under such circumstances these bills present no error. Miller v. State, 79 Tex.Crim. Rep., 185 S.W. Rep., 29.
The only other matter complained of which we deem necessary to notice, is the contention that appellants should have been granted a postponement after Juan Laerma had testified. As shown in the original opinion, appellants' counsel could not have been surprised at that testimony when given by the witness. They had been put on notice by the witness, and the court instructed the witness to talk to them, and he went to their office to do so, and when Laerma went to tell their interpreter what he would testify to, their interpreter denounced him as a liar, etc. We take the following excerpts from Mr. Branch's Penal Code, section 340:
"An application for continuance made to secure the testimony of an absent witness on account of surprise during the trial is defective if it fails to state that there was no reasonable expectation of procuring the attendance of such witness during the present term of the court by a postponement of the trial to a future day thereof. Sweeney v. State, 59 Tex.Crim. Rep., 128 S.W. Rep., 390.
"A bill of exceptions taken to the refusal to continue or postpone because of surprise during the trial is defective if it fails to show what defendant expected to prove by the absent witness. Davis v. State, 60 Tex.Crim. Rep., 132 S.W. Rep., 932.
"Defendant is not entitled to a continuance on the ground of surprise when the surprise was caused by his own carelessness and neglect. Evans v. State, 13 Texas Crim. App., 225."
In the application for postponement appellants state the name of no witness; ask for process for no witness, and by their allegations demonstrate they have knowledge of no witness who would contradict the testimony of the witness Laerma other than those in attendance on court. The most that can be said, they requested that they be granted time to go upon a "fishing expedition" to see if they could not find some testimony not theretofore known to them.
The motion for rehearing is overruled.
Overruled.