Conviction is for murder; punishment fixed at confinement in the penitentiary for a period of ten years.
Allen Smith was shot and killed. There were two wounds — one bullet entering on the left side, going through the body and coming out on the right side. If it entered the cavity, it was but slightly. The other bullet entered the left side of the small of the back, ranging downward and going through the upper part of the kidney.
There were several eyewitnesses. The appellant, Allen Smith and Leon Moore were gambling with cards. The game contemplated the dealing of five cards, one of them with the face down, the others exposed. Six cards were dealt to each player. The evidence is conflicting as to who dealt the cards. A controversy arose touching the effect of this error.
Moore's version is, in substance, this: When six cards had been dealt, Smith contended that neither could win the bet, but that they would have to "split the bet." Appellant sprang to his feet and said: "We will split it this way" and shot. Moore reached for his money and the appellant then shot him. After being shot, Smith laid down on the counter, and after shooting Moore, the appellant shot Smith again. The evidence showed that Smith had an automatic pistol, though Moore testified that neither he nor Smith drew a pistol or made any demonstration to do so.
The testimony of the State witness Rogers was in substance like that of Moore. Other witnesses testified that both Rogers and Moore were present. The State's witnesses were negroes.
The witness Poteet, a white man, was with the appellant. They *Page 379 came together to the place where the gambling occurred. Poteet was hired by the appellant to bring him in a car. Poteet said that Smith dealt off too many cards. Wells (the appellant) claimed that he won the bet. Smith denied this and said he would take his money. Appellant then said that they would split the bet. Smith said: "Hell, no, you won't split nothing with me," and raised up to get his gun, that is, he reached back to his hip pocket, where the witness saw an automatic pistol. Smith got it out, and appellant shot twice in immediate succession. Both shots were fired while Smith was standing. Moore, in the meantime, was getting his gun. He shot at the appellant but did not hit him.
Appellant testified that he and Smith were betting. Smith was dealing and dealt himself six cards, and appellant said: "You have six cards; I win the money," to which Smith replied: "I will be damned if you win the money," and reached for his money. Appellant said that he knew he was hemmed in and must act promptly, so he reached for his pistol and fired twice. About the same time that he shot, Moore came around the corner with a pistol leveled at him and fired. The appellant returned the fire from a sitting position, then jumped up and raised the table and got out. He said that Smith had his gun in his hand and was pointing it at the appellant when the second shot was fired.
In Bill No. 1 complaint is made of the failure of the court to serve the appellant with a copy of the indictment. The indictment was filed May 5, 1922. Appellant was at large on bail and late in the afternoon of the 30th of May, he filed a motion demanding a certified copy of the indictment. The motion was heard on the next morning and a certified copy of the indictment was delivered to the appellant.
Appellant also sought a delay of two full days, which was denied. In refusing to delay the trial under the circumstances, the court appears to have been justified under the authorities. Venn v. State, 86 Tex.Crim. Rep.; Revill v. State, 87 Tex. Crim. 1, 218 S.W. Rep., 1044.
In Bill No. 3 complaint is made that the State proved by hearsay evidence that the appellant had married a negro woman. Appellant testified that he was a half-breed Indian; that he came from Oklahoma; that he had been married but was divorced; that he had married Elnora Cochran, a half-breed mulatto negro. This was not hearsay. In the court's qualification to the bill of exceptions, it is shown that the court had prepared a paragraph of his charge withdrawing the testimony complained of from the consideration of the jury; that he exhibited the charge to the counsel for the appellant, who objected to having it read to the jury and because of the objection, the charge was not given. Granting that the testimony was not relevant, it is deemed not of such harmful character that it could not have been withdrawn by an instruction to the jury. The appellant *Page 380 having prevented the withdrawing of the testimony is not in an attitude to complain.
No errors appearing in the record, the judgment is affirmed.
Affirmed.
ON REHEARING. March 14, 1923.