This case was affirmed at a former day of this term, and now comes before us on motion for rehearing.
Appellant's principal contention is to the effect that this court erred in holding that the court below did not err in overruling appellant's motion for continuance, and in refusing to grant appellant a new trial for the error committed in overruling his motion for continuance. We discussed this matter at length in the original opinion, and we there held that appellant was lacking in diligence in suing out process for the *Page 40 absent witnesses, C.S. Fielder, Arthur White, and Mrs. Lizzie Hosman; that the testimony of said witnesses, even if they had been present, in our view of the case, was immaterial, inasmuch as the record shows without controversy that appellant was the aggressor in the difficulty. Appellant, however, insists that, though he may not have used diligence in procuring said witnesses, yet it appearing, after the conviction, that the testimony of said witnesses would have been material and probably true, another rule prevails, and that a new trial will then be granted in the interest of justice, although appellant may have been lacking in diligence; and furthermore, he insists that the testimony of both the communicated threats of Fielder and the uncommunicated threats of White and Mrs. Hosman would be material, both as tending to show who was likely the aggressor and brought on the difficulty, and as tending to render more significant the actions of deceased on that occasion, from the defendant's standpoint. Appellant, in this connection, further urges that the court committed a very serious error in stating that the former difficulty between deceased's son Joe Evans and appellant occurred about a year before the homicide, whereas, in truth and in fact, it occurred, as appears from the record, only three months prior to the homicide; and also that the court was not authorized in stating that, after the time when said threats should have been communicated, deceased and appellant must have met a number of times, as they lived in the same neighborhood, etc.; and that we were further in error in stating that bad blood existed between the parties, deceased and defendant, it being insisted that the record does not disclose any animosity on the part of defendant towards deceased, however much it may indicate animosity towards defendant on the part of deceased.
We concede that we were in error in stating that the former difficulty between appellant and deceased's son Joe occurred about a year before the homicide. The record is somewhat confused on this subject, and we were thereby misled. On a closer inspection, it is apparent that the difficulty occurred between deceased's son Joe and defendant on August 21, 1897, just three months before the homicide. Of course, the time being shorter than stated in the original opinion, there would be less opportunity for the parties to have met between the time of the difficulty, in August, and the homicide, in November. Still, the parties lived close neighbors. Deceased, in going to town, traveling immediately by appellant's house, in the very nature of things there were frequent opportunities of meeting. Besides, as to the witness Fielder, by whom alone it was alleged communicated threats could be proved, it is not stated when said threats were made, save that they were made after the difficulty between appellant and deceased's son. How long after we are not informed. It is stated that they were communicated before the homicide, but how long before we are not told. The rule is that presumptions will not be indulged in to help out the failure of appellant to definitely state these matters. In the view we take of this question, we do not consider that it makes any material difference *Page 41 that the threats were communicated a year or only three months before the homicide. In either event, as stated in the original opinion, the parties, being near neighbors, must have met; and if appellant entertained any apprehension of danger from deceased on account of said threats, ample opportunity was afforded to have him arrested and put under a peace bond.
In regard to the existence of bad blood between the parties, and that this feeling was shared in by defendant, we think the record throughout discloses this. We will only cull from the testimony enough to show the animus of appellant's mind towards deceased, and that it had existed for some time. The fight between Joe Evans (son of deceased) and defendant, in which the former got the worst of it, occurred about three months before the homicide. It was shown that threats by deceased against defendant were shortly afterwards communicated to him. George McCutcheon stated that he knew the bad feeling that had existed between Evans and Highsmith for some time. Deceased had been picking at John (defendant) ever since he was a little boy. This same witness testified that, during the difficulty, defendant, with his pistol drawn and presented at defendant, who had a knife in his hand, said, "God damn you, drop it! You have been making your John Branch plays with that knife before." The evidence of this same witness shows that deceased bought the knife in question some time before, and, in connection with said knife, had made some threat against defendant to this same witness, who told him that "that knife would get him into trouble yet." This, it appears, was communicated to defendant. From this testimony and other evidence in the record, we do not think it can be seriously contended that appellant did not entertain animosity towards deceased antedating the homicide for some months.
Now, as to the motion for continuance, there can be no question that appellant was utterly lacking in diligence. He claims that Fielder was a material witness, and yet this record shows that he knew where Fielder lived; that his residence was near Langtry, in Val Verde County; but, notwithstanding this, he states, as a reason for his failure to issue process for said witness until the 24th of January (which was fourteen days after his arrest), that he was seeking to ascertain his whereabouts, and did not learn of this until the 23d of January, 1898. This, as stated, was an utter lack of diligence on his part to procure what he alleges to be very material testimony. The threats expected to be proven by the other absent witnesses it is not claimed were communicated. Concede, however, that the question of diligence cuts no figure when the matter comes up on motion for new trial, we still adhere to our original opinion, that an impartial review of the testimony of the eyewitnesses fails to disclose the materiality of the testimony of the absent witness. George McCutcheon, who was the only eyewitness who saw and testified in regard to the entire difficulty from start to finish, although used by the State, was evidently not an unfriendly *Page 42 witness to defendant. The other witnesses who saw the difficulty after it had begun and its termination were Albert Highsmith, father of appellant, Mr. and Mrs. Will Highsmith, Mattie Brown, and Susie Magruder. None of the defendant's witnesses antagonize the State's witness George McCutcheon as to the beginning of the difficulty, and, of course, as to the inception of the conflict, the case must rest on his testimony. True, several of appellant's witnesses, who state they were sitting on the gallery of Albert Highsmith's house, about seventy-five yards from the place of the difficulty, state they saw deceased Evans, when he rode up to where defendant was. Will Highsmith says Evans rode along, and wheeled his horse right in behind the defendant, when the difficulty began. Albert Highsmith testified on this point: "I noticed Evans for the first time when he was within twenty steps of defendant. He rode right up until he got right on the boy, turning his horse near him as he approached. The defendant's horse was facing south across the road, and just as Evans' horse got behind the boy's, going east, he wheeled his horse around, and as he did so, I saw him make an attempt as if he was going to cut him." Now, it will be noticed that not one of these witnesses states he was immediately present, and does not assume to state what occurred before this, except the witness George McCutcheon. This witness states that he saw defendant pass deceased just before they got across the culvert, coming in his direction. This culvert was some 200 yards from the witness, down the road in the direction of Hutto. "I did not notice anything when he passed him. When John got to the gate, I was in about four steps of the gate. John said to me, `What makes you walk and look so sleepy?' Defendant and I were standing talking, and Mr. Evans was then about twenty or thirty steps off, coming towards us, traveling in an ordinary gait for a walking horse. As Evans came up, I spoke to him, first saying, `Howdy, Tom;' and he said, `Howdy, George.' When Evans was within a few feet of us, defendant turned his head towards deceased, and said to him, `What is that you have got up your sleeve?' The deceased replied, `That is all right;' and continued riding on. When deceased's horse's head reached a point nearly opposite the tail of defendant's horse, the defendant again asked, `What is that you have got up your sleeve?' Evans again replied, `That is all right;' and sorter checked up his horse, but did not stop. Defendant then said, `You God damned hypocritical son of a bitch, it's a knife you have, and you have it for me.' Deceased then stopped his horse, and turned facing south, in the same direction defendant's horse was facing, and, shaking the knife out of his sleeve, said, `Well durn you, if nothing else will do you, it is a knife, and I've got it for you.' As deceased stopped his horse and turned, defendant turned his horse around, pulling him back, and facing his horse to deceased, and pulled his pistol, and cocking it, threw it down on deceased, and continued cursing him. Deceased was at this time facing defendant with his knife in his right hand, with the blade pointing towards defendant, and was gritting his *Page 43 teeth at defendant. Deceased then caught hold of the lapels of his coat in each hand, and, holding his coat open, said, `If you want to murder me, just shoot.' At this time defendant and deceased were about two horse lengths apart, defendant having pulled his horse around and back several feet towards Hutto, but still keeping his pistol leveled on deceased. About this time Albert Highsmith, defendant's father, came running out from the house, and calling to defendant to not shoot. When he got out near the road, he pulled his pistol, and leveling it at deceased, said, `You want to murder my boy.' Deceased replied, `No; you want to murder me.' When Albert Highsmith got to the road, deceased turned from defendant, and rode across to near where Albert Highsmith was standing, facing Albert Highsmith, with his back turned towards defendant. Albert Highsmith told deceased to drop his knife. Deceased answered, `I will die first.' Deceased then turned his horse again towards defendant, and with his knife still in his right hand, with the blade pointed outward towards defendant, and his arm extended, defendant then said, `God damn you, drop it! You have been making your John Branch plays with that knife before.' Evans said, `I will die first, if you want to murder me, just shoot.' Evans was then standing up in his stirrups, pointing his knife towards defendant and gritting his teeth. (Witness here illustrated how Evans was motioning with his arm and knife.) John then shot him. When the shot was fired, deceased was about six or seven feet from defendant. I did testify at the examining trial that it was about fourteen feet, but have since learned that it was about six or seven feet. When deceased was shot, he settled back in his saddle, and said, `You have killed me; let me go home and die.' The defendant said nothing, but, as deceased turned and rode away, he said something about his friends who would see him through this. Albert Highsmith said, `If you want any more, just come back again.' When the shot was fired, deceased was nearer to Albert Highsmith than to defendant. Both defendant and Albert Highsmith had their pistols leveled on him." We have given substantially his testimony in chief, and the cross-examination did not materially change this.
As stated before, no one but the witness George McCutcheon was immediately at the place of the difficulty, and heard and saw what the parties said and did. We do not understand that there is any clash as to the origin of the difficulty between the evidence of McCutcheon and the evidence of defendant's witnesses. They heard nothing, and they saw nothing, until deceased stopped and turned towards defendant, and we think a fair review of George McCutcheon's evidence establishes without controversy that appellant began the difficulty. It is strenuously urged by appellant that it appears from the testimony that deceased, as he approached defendant, who had stopped in the road to talk to George McCutcheon, was riding directly onto defendant, as if he were menacing him; but we submit that his testimony, fairly considered, does not bear out this contention. It is true McCutcheon's *Page 44 testimony shows that deceased was riding towards defendant, and he may have been on the same side of the lane, yet he was not coming as if to attack him or to ride him down. He was in the act of passing appellant, who called to him, not once, but thrice. When deceased was nearly opposite defendant, riding in an oridnary walk, defendant turned his head towards deceased, and said to him, "What is that you have got up your sleeve?" Deceased merely replied, "That is all right," and continued right along. Again, when deceased's horse's head reached a point nearly opposite the tail of defendant's horse, defendant asked, "What is that you have got up your sleeve?" Evans replied, "That is all right;" and "sorter checked up his horse, but did not stop." Defendant still persisted, and denounced him as a "God damned hypocritical son of a bitch," and told him that it was a knife he had up his sleeve, and that it was for him. If this was not language calculated to provoke a difficulty, then we are unable to understand the use of plain, emphatic, abusive language.
It will be observed, in this connection, that Evans had just previously passed defendant en route from Hutto to his home, and, if he had desired to attack him, there was certainly then a better opportunity than afterwards, when defendant had reached his home, and was surrounded by his family and friends. He made no effort at this time, and the evidence shows that when defendant passed him he then had his knife up his sleeve, and defendant must have observed it. He was passing him the second time. But appellant, not content to allow him to pass along in peace, challenged him in regard to his purpose in carrying a knife up his sleeve; not content with his reply that it was all right, proceeded to denounce him in bitter and vindictive and abusive language, eminently calculated to provoke and bring on a difficulty. As stated, the origin of this difficulty must rest or fall on the testimony of George McCutcheon, because no witness contradicts him, and, measured by his testimony, we fail to see what purpose threats, however malignant or diabolical, would have served. It occurs to us that, under such circumstances, threats, instead of being an advantage, would have been a circumstance of aggravation, as showing animus. If threats, under such circumstances, will afford a justification or mitigation of the offense, as was said in Johnson v. State, 27 Tex. 758, "a full floodgate would be given to the most wicked passion, and murder, fearful as it already is, in a tenfold greater degree would stalk through the land clothed in the panoply of the law."
If we take up the other witnesses after they come upon the scene, we fail to find, from a fair review of their testimony, that there was at any time an abandonment of the difficulty. The most that can be said is that there was a temporary cessation as Albert Highsmith came out of his house with his pistol. Nor does the testimony of any of the other witnesses suggest to our minds that at any time *Page 45 appellant's right of self-defense, as claimed by him, was restored, on account of any acts or conduct on his part. Both appellant and Albert Highsmith were armed with pistols. Deceased's only weapon was a knife. According to the testimony of Albert and Will Highsmith, when Albert Highsmith came out into the road with his pistol, deceased, from some account, turned from defendant, and confronted Albert Highsmith. He says that he was going to his boy, but deceased turned his horse, and cut him off, and then drew his knife on him in a striking position; that he then drew his pistol, and said, "You want to murder my boy." Deceased replied, "You want to murder me." Both defendant and Albert Highsmith, it seems, about this juncture, demanded that he drop his knife, and he replied that he would die first. From some cause deceased turned towards defendant, according to their testimony, and advanced on him, when he shot him. At no time, does it occur to us, was there a stoppage or interruption of the difficulty. Events followed each other in rapid succession, and evidently a very short space of time ensued between the beginning and the end of the difficulty. Appellant, having provoked the difficulty, followed it up. Reinforced by his father, both armed with pistols, they had a vast advantage over deceased; and, under the circumstances exhibited in this record, they had no right to disarm him, much less to slay him because he refused to be disarmed.
The animus of defendant is further manifest by his declarations made immediately after the homicide. As testified by Susie Magruder and Mattie Brown (two little visiting girls at the house of Albert Highsmith), defendant said, as he came in: "`God damn him, I wish I had killed him. God damn him, I believe I will go and kill him yet.' Then said to us: `Little girls, you need not be afraid. All of this is caused by little girls' talk.'" In our view of the case, it makes no difference that deceased when he was shot was advancing on defendant with a drawn knife. His adversary had begun the difficulty. Reinforced by his father, and armed with superior weapons, they had followed it up. If deceased did advance upon defendant, menaced and beset as he was, he had a right to act in self-defense; and we fail to see how the threats proposed to be proved by the absent witnesses, whether communicated or uncommunicated, would in anywise, either at the beginning or during the entire progress of the difficulty, have benefited appellant. According to the original opinion, what deceased did after he was attacked was proved by positive testimony. His conduct was manifest, and it did not require threats to give it additional significance. Nor, as before stated, was it a question as to who began the difficulty. There was no controversy as to this matter. In whatever light the question may be viewed, we fail to see what benefit the testimony of the absent witnesses would have served in this case.
We understand appellant also complains of some of the charges of *Page 46 the court, and that the court should have given some of the charges requested by him. This matter was discussed in the original opinion, and we do not deem it necessary here to reiterate what was then said. The motion for rehearing is overruled.
Motion overruled.