Appellant was tried for murder and convicted of manslaughter, and his punishment assessed at two years in the penitentiary.
The killing grew out of a difficulty which occurred at a negro supper. The record discloses that the appellant and the deceased had a fight on the gallery where a dance and supper were in progress; that the appellant left the gallery and went into the yard and from there to his automobile and, as he started to get into it, another fight took place between the deceased and the appellant in which the deceased received the knife wounds that resulted in his death. It was further shown by the appellant that as he was getting into his car the deceased and several other negroes jerked appellant back from the car and assaulted him.
Appellant's defense was self-defense.
Appellant, in his bill of exception No. 1, complains that when jurors were being selected J. D. Baxter, a juror, was called and testified on his voir dire that he was prejudiced against Mexicans and did not like them, whereupon the appellant challenged said juror for cause, and the court overruled said challenge and forced appellant to use one of his peremptory challenges. Appellant objected because the juror was prejudiced against him and his race. The court qualifies the bill by stating that from an examination of the juror as a whole the court found there was no such prejudice in the juror's mind as would influence him in the trial of the case notwithstanding the fact that he did not like Mexicans, and it is also shown in the court's qualification that the appellant did not exhaust all of his peremptory challenges, and he was not compelled to take anyone on the jury who was objectionable. In the light of the court's qualification, which was not excepted to, we conclude that the complaint raised in this bill of exception is without merit.
Appellant, in his bill of exception No. 2, complains of the court's refusal to allow him to ask the witness Silas Stovall a particular question as appears from the following. Silas Stovall, constable of precinct No. 7, had testified that he arrested Bruno Hernandez, a Mexican, who had been tried as an accomplice and acquitted, and who, as shown by his own testimony and the testimony of other witnesses, had participated in the fight. The constable testified that he arrested Hernandez as the Mexican was coming from the scene of the difficulty and that Hernandez had a hat in his hand. Appellant, on cross-examination of Stovall, asked the witness whose hat it was, and it is shown that the witness would have testified that Hernandez told him, at *Page 72 the time witness arrested Hernandez, that it was Pedro Romero's (the appellant's) hat, and that Hernandez picked it up at the scene of the difficulty after the appellant had run away, and was carrying it to Pedro Romero, the appellant. The appellant offered this testimony to show that he was running from his assailants and left the scene of the difficulty so hastily he was forced to leave his hat in their possession. The court sustained the state's objection to said testimony on the ground that it was hearsay, to which action of the court the appellant excepted, contending it was res gestae of the act and was stating a fact so intermingled with the act that it was competent testimony. The court's qualification to this bill certifies that the difficulty occurred about midnight and that the witness Stovall testified it was about four o'clock in the morning when he arrested Hernandez and that the court did not believe it could be a part of the res gestae under these circumstances. In view of the court's qualification, which was not excepted to, we think the matters complained of in this bill present no error.
Bill of exception No. 3 complains of the action of the trial court in refusing to postpone the case until the attendance of the witness Clarence Boyd could be secured, a mistake having been made and the wrong Boyd having been subpoenaed. The bill of exception states that there were two Clarence Boyds living near Rosebud in Falls County and the one who was summoned and attended the trial was not the Clarence Boyd who was present at the time the difficulty occurred. The qualification to this bill by the learned trial judge shows the appellant was indicted on the 28th of August, 1926, and on the 7th of September, 1926, the case was set for trial for the 4th of October, 1926, and on the 4th of October the companion case against Bruno Hernandez was tried and the instant case was postponed until the 15th of November, 1926, when it was called for trial and some of the witnesses for the state and some for the appellant were absent, and the case was again re-set for December 9th, 1926, and an attachment issued for Bruno Hernandez, a witness for the appellant. The case was again postponed until the 20th of December, 1926, at which date it went to trial. The court further certifies that if it had been known to the sheriff or the court where the witness lived that the proper Clarence Boyd would have been summoned and would have been in attendance in court, or if the appellant or his counsel had talked with the witness that that fact would have been ascertained. The court further certifies that he did not believe appellant had shown due diligence in finding out which Clarence Boyd was *Page 73 wanted and for that reason did not feel justified in postponing the case until his attendance could be secured. There is no exception to the court's qualification. In the light of the court's qualification, this bill presents no error.
Bills of exception Nos. 5, 7 and 8 complain of the action of the court in failing to sustain appellant's exceptions to the court's charge and in refusing to give appellant's two special charges. An examination of the court's charge discloses that the learned trial judge corrected his main charge by charging the jury that an assault and battery by the deceased upon the appellant, causing pain and bloodshed would be deemed adequate cause sufficient to reduce the homicide from murder to manslaughter. The two special charges requested by the appellant and refused by the court were covered by Section 12 of the court's main charge wherein the court instructed the jury as to the law of self-defense. We think this charge fully and ably protected the rights of the appellant.
The facts being sufficient to support the verdict of the jury and there appearing no errors in the record, the judgment of the trial court is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.