The judgment condemns appellant to confinement in the penitentiary for a period of twenty-five years for the offense of murder.
Jim Havard was shot and killed by the appellant, the weapon used being a shot-gun loaded with buckshot. *Page 219
Besides murder, the issues of manslaughter and self-defense were submitted.
The deceased was the husband of appellant's sister and the father of her six living children. Appellant was twenty-four years of age, and on the day before the homicide had from his mother received information that the deceased had impeached the chastity of his wife, charging that she submitted her persons to negroes. On the following morning, he procured a gun and shells and went to the home of the deceased.
The family consisted of the decased, his wife, a son, twenty years of age, a daughter, sixteen years, another thirteen years, and two younger ones who did not testify. All of these spent the night at the Havard home and all save the son were there at the time of the homicide. The son, a short time before the homicide, had been invited by the brother of the appellant to go and examine some stock at his home and was there at the time his father was killed.
According to the daughters of the deceased, appellant came to the home and invited the deceased to go hunting with him. This was declined and a short conversation followed, the deceased sitting in a rocking-chair which was on the porch. Reference was made by the appellant to the controversy pending between the deceased and his wife, touching the change of locality, and the deceased referred to the troubles previous and pending between himself and his wife and said that he had used his best endeavors to please her and offered to divide the property with her, and the appellant, with an oath, said that he (deceased) had been accusing her and was doing so for the last time; that he raised his gun and fired twice, striking the deceased in the neck; that no demonstration was made by the deceased and no threat uttered by him.
The version of the appellant is that he sought the deceased for an explanation of his insulting conduct towards his wife, a sister of the appellant; that he armed himself for protection, the deceased being a dangerous man and having, according to the information received by the appellant, expressed the intention to kill him. After conversing for some moments, appellant referred to the accusations that he had learned the deceased had made against his wife. The deceased became very angry, cursed the appellant and said he would kill him; that he threw his right hand to his hip pocket as though he was going to draw a pistol or some other weapon. Appellant, believing that he was going to be killed by the deceased, fired the shots.
A first application for a continuance was overruled and an exception was duly reserved and the matter was again presented in the motion for new trial. Pitman, one of the witnesses, would have testified, according to the averments therein, that about a week prior to the homicide, the deceased endeavored to borrow a pistol from him, appeared angry and referred to his wife, stating in substance that he had lived in hell with her for twenty years and would not put up *Page 220 with the "damn bitch" any longer; that she and her brothers wanted to run him off and get his property; that he did not intend to leave but would kill them all; that appellant was the only one with whom he had not had trouble and that he was the only one who had nerve enough to fight him, and that if he fooled with him or tried to take up his sister's troubles he would kill him; that he would kill any son-of-a-bitch who would take sides with a woman like his wife against him, and try to get his property; that these declarations of the deceased were communicated to the appellant on the second day preceding the homicide.
On the trial of the case the appellant testified to the communication of these matters to him by the witness Pitman. No other witness testified to the same or similar facts. It was shown, however, that the relations between the deceased and his wife had long been unfriendly and that she had made frequent threats to take his life. This testimony was developed by the state. No reason is given for overruling the application save that the court, in qualifying the bill, says that most of the other witnesses named in the application were present and testified. It was not claimed in the application, however, that any of them save the witness Pitman would have testified to threats.
Touching the diligence, the facts are these: The indictment was filed on the 8th of April, the trial began on the 12th of May, and was concluded on the 16th; subpoena for the witness, who resided in the county, was issued on the 11th of April and duly served, as shown by the return of the sheriff made on the 25th day of April. The motion was presented on the 12th of May, and the court announced that he would overrule it. Defect in the service of veniremen resulted in delay of one day proceeding with the trial; the motion was then renewed, appellant in the meantime having procured an attachment for the witness directed to Harris County where, according to the averments made in representing the motion on the 14th of May, the witness was temporarily located. The state did not exercise its right to controvert the facts showing diligence nor the probability of securing the testimony of the witness by delay. This it might have done if the averments were not true. Roquemore v. State, 54 Tex.Crim. Rep.; Branche's Ann. Texas Penal Code, Sec. 321.
We discern no defect in the diligence nor does the record suggest, so far as we are able to perceive, that the absence of the witness was due to any fault of the appellant. There is no lack of diligence shown which would authorize the refusal to grant the motion. Donahoe v. State, 28 Texas Crim. App. 13; Mapes v. State, 14 Texas Crim. App. 134; Branch's Ann. Texas Penal Code, Sec. 318; Giles v. State, 89 Tex.Crim. Rep.; 231 S.W. Rep. 767. Moreover, the evidence of the absent witness being to support the appellant's defense otherwise resting upon his own testimony, the application is one to which the rule of diligence is not so strictly applied as in some other *Page 221 instances. Koller v. State, 36 Tex.Crim. Rep.; Beard v. State, 55 Tex.Crim. Rep.; Mitchell v. State,36 Tex. Crim. 278; Duffy v State, 67 S.W. Rep. 420; Day v. State,62 Tex. Crim. 452; Branch's Ann. Tex. Penal Code, Sec. 319 and 329.
In submitting the case to the jury, the court instructed, in connection with self-defense, upon the law of apparent danger, and also specifically instructed upon the law of communicated threats. These phases of the case rested solely upon the testimony of the appellant. Obviously, it was material to the appellant that there be testimony other than his own that the threat had been communicated to him. Upon this subject, the language of Presiding Judge Hurt, in the case of Gilcrease v. State (33 Texas Crim, Rep. 629), is pertinent. For quotation and authorities, see Dunn v. State, 85 Tex.Crim. Rep..
It is truly said by counsel for the state that a continuance is not a matter of right. It is equally true that the discretion of the trial court to overrule it is not absolute, and in re-considering the action upon hearing the motion for new trial, the sufficiency of the application for a continuance in the way of diligence, materiality and probable effect on appellant's case are matters for the consideration of the court. Harris v. State, 18 Texas Crim. App. 287; Bronson v. State, 59 Tex. Crim. 17; and other cases listed in Vernon's Texas Crim. Statutes, Vol. 2, pages 321-322. In one case it is said:
"The rule which should govern the trial court in passing, first, upon an application for continuance, and subsequently upon a motion for a new trial is, if there is such a conflict between the inculpatory facts and those set forth in the application as to render it improbable that the facts stated in the application are material and probably true, the continuance should be refused, and also a new trial based upon such refusal should be denied. There must, however, not only be such a conflict, but the inculpatory facts should be so strong and convincing as to render the truth of the facts set forth in the application improbable." McAdams v. State, 24 Texas Crim. App. 86; Hollis v. State, 9 Texas Crim. App. 643. This rule, we understand, has been substantially affirmed and applied in many cases. Duffy v. State, 67 S.W. Rep. 420; Yantes v. State, 49 Tex.Crim. Rep.; Mitchell v. State, 36 Tex.Crim. Rep.; Branch's Ann. Tex. Penal Code, Section 335 and 338.
We have been unable to discern anything in the record upon which there might be justly founded a conclusion that the purported evidence of the absent witness was not probably true. It is in consonance with appellant's testimony; it is contradicted by no witness for the State; no suspicion is thrown upon the good faith of the application. It is not suggested that the witness was a fictitious person. The contrary appears from the return of the sheriff serving the subpoena. The setting and circumstances of the case do not seem to us to render it improbable that the deceased had made remarks similar to those attributed to him in the motion for a continuance. It appeared from *Page 222 the testimony of the state's witnesses that the deceased and his wife occupied separate rooms; that they were unfriendly; that the wife refused to speak to him; that there were families of negroes living nearby; that other members of the Dixon family had expressed ill will towards the deceased; that a short time before the homicide the wife of the deceased had gone to her brothers, leaving home in bad humor with the deceased; that she had cursed him and threatened to take his life on a number of occasions; that they did not eat at the same table; that she manifested hostility towards some of the children, made some of them leave home and said she was going to get a gun to kill the deceased.
In making his return on the special venire writ, the sheriff gave a list of those summoned, but left blank the space corresponding with the names and number of three of the veniremen. A motion to quash the venire upon this ground was made. One of the missing veniremen attended; one filed and affidavit of exemption and one was shown to have been out of the county and not served for that reason. The mere matter of an irregularity in the return of the sheriff is ordinarily not ground for quashing the writ. The precedents upon this subject are cited and reviewed at some length in the case of Whittington v. State, 86 Tex.Crim. Rep., to which we refer. A correct list of the jurors summoned having been served upon the appellant and the trial postponed for one full day after the service, his rights in this respect were fully conserved. Swanney v. State,66 Tex. Crim. 293, 146 S.W. Rep. 548; Ollora v. State,60 Tex. Crim. 217; Luster v. State, 63 Tex.Crim. Rep.; Code of Crim. Proc., Art. 672, and authorities listed therein in Vernon's Texas Crim. Statutes, Vol. 2, p. 361.
The law does not contemplate that persons summoned to serve on a special venire shall be excused by the court without the consent of the accused except for some reason exempting such persons from jury service. If such exemption exists and the person desires to take advantage of it, he should appear in open court and testify to the facts or make written affidavit and file it with the clerk, as provided for by Article 676 of the Code of Crim. Procedure. See Crow v. State, 89 Tex.Crim. Rep.; Clayton v. State, 83 Tex.Crim. Rep.; Johnson v. State,86 Tex. Crim. 566; Gunn v. State, 234 S.W. Rep. 398; Bizzell v. State, 72 Tex.Crim. Rep..
In the instant case, some of the persons summoned were excused by the trial judge. As to all save one, however, we understand from the record, that there was a substantial compliance with the statute. This one was a state officer, and he informed the trial judge in advance of the trial that he wished to take advantage of his exemption, and to this the trial judge gave his assent, but required no affidavit to be filed. The appellant, when the name of the juror was reached on the list, insisted upon process for him. This was refused. The action of the court was erroneous, but probably not an adequate reason for *Page 223 reversal. It was shown upon hearing of the motion for new trial that the facts establishing the exemption of the juror really existed; that he claimed his exemption and made this known to the court before the trial. The affidavit should have been demanded, and it occurs to us that when the question was developed upon the trial, prudence would have suggested that the state exercise a peremptory challenge and thereby eliminate the juror. Campbell v. State, 30 Texas Crim. App. 645; Rice v. State, 54 Tex. Crim. 149. It was the right of the appellant to have the juror present unless, in excusing him, the procedure provided by law was followed. As stated above, we think the record, in the instant case, excludes the idea of injury, but a case might arise in which this would not appear.
There is complaint of the admission in evidence of testimony showing the conduct of the wife of the deceased, including her leaving the premises without viewing the body of the deceased and her threats to kill him; her harsh conduct towards the children and other details concerning the relations of the deceased and his wife antecedent to the homicide. Complaint is also made of the testimony of the conduct of the brother of appellant in inviting the son of the deceased to leave the premises. As these bills are drawn, no error is shown. Much of the testimony involved was manifestly admissible. It is a general rule that where a part of a statement is admissible and a part subject to objection, a bill complaining of the ruling of the trial court in admitting the whole is too general. It should segregate and point out that which is claimed should have been excluded. When the objection is directed to the whole statement, a part of which is admissible, it is not the duty of the trial judge to segregate it but he has the privilege to overrule the objection. Branch's Ann. Texas Penal Code, Section 211.
We will add with reference to the bills in question that apparently the manner in which the case was conducted left open the right to prove practically all of the matters that are embraced in the bills. That is to say, the conduct of the deceased and his wife towards each other and their relations, which were known to the appellant, are so intimately connected with the state of the mind of both the appellant and the deceased as to render them relevant.
There being no charge to the jury upon the issue of provoking the difficulty and no instruction limiting or qualifying the right of perfect self-defense, there was no error in the court's failing to instruct the jury that the appellant had a right to arm himself and seek the deceased for an explanation of his insulting conduct towards the appellant's sister. Williford v. State, 38 Tex.Crim. Rep.; Alfred Smith v. State,81 Tex. Crim. 369.
Because of the errors pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded. *Page 224
ON REHEARING. March 8, 1922.