Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of forty years; hence this appeal.
Appellant made a motion for continuance on account of the absence of two witnesses. This was the second application for continuance, and the diligence used was not sufficient.
During the trial the State was permitted, over appellant's objections, to introduce in evidence what purports to be a statement of one Ward in the presence of defendant. The statement of said Ward was proven by Mart Royston, a witness for the State. It was shown that the declarant Ward, whose statement was reproduced, was dead, having died since the commission of the homicide; and that Royston was present in the police station, and defendant Nicks was also present, and that Ward made the statement to Royston. Looking through the bill of exceptions, it appears that the statement was what defendant told Ward shortly after the homicide, as to what he had to do with it. We quote this portion of the bill, as follows: "Ward said he was a night watchman at the rice mill, and at times looked out for the business for Nicks, in Nicks' woodyard; that he saw Nicks the afternoon before the shooting, and Nicks told him he was looking for a man who had been laying around Nicks' place of business; that Nicks told him he wanted to lay for the man, and that Nicks wanted him to send for a Mexican named Garcia or Jesse, who worked for Nicks; and that Ward agreed to and did send for this Mexican; that Ward said further, that *Page 256 in a few moments, the Mexican came and brought the cartridges, and inquired about the whereabouts of Nicks; and also telephoned for Nicks to come over so he could see him about a car of wood that had been or was to be purchased; that after telephoning he hung up the receiver and walked out of the mill on to the sidewalk to meet him. That somebody stepped from behind a bush or telegraph pole, who had his face blackened; that he, Ward, stepped back, and inquired who it was; and that Nicks laughed, and that Ward then said, `What in the hell are you doing here?' And that said Nicks then said he was going to lay for a man; that said Ward further said that he then talked with Nicks about the wood, when Nicks went off. That later on in the night he heard a whistle, and went around and at first did not see anything, but later he went down there and found Nicks at the wash basin, when Ward said to Nicks that he would hold a lamp for him to wash. But Nicks said it was not necessary. That Nicks said to Ward then, `I didn't get the man. I couldn't find the fellow I was looking for.' That he had walked out there and shot his gun; that he, Nicks, asked him, Ward, to take the gun and clean it; and that Ward said he took the gun and put it in his pocket. That Nicks then asked for Jesse the Mexican, and Ward called him down; that Nicks then asked if anyone had inquired for him; and Ward said no. That Nicks then said to Ward, `If they do, remember to say I was here at the mill from 12 o'clock, and that I then went over home and wrote a letter.' Ward said he repeated this question, and statement to the Mexican, Jesse, when he came down; and told them both that if anybody inquired for him, for them to say that he had been at the mill all night; that Ward said he did not hear of the murder till Nicks was washing something out of his eye. Ward had stated also that when he telephoned Nicks, and Nicks came over and stepped from behind the bush or pole, that he, Nicks, had some blackened cork on his face, and Nicks then said that that statement of Ward was not correct, that he had not blackened his face but that he had a green handkerchief tied over the upper part of his face." The court attaches to this bill the following: "The witness was only allowed to state the evidence of Ward made in the presence of defendant and for the purpose of contradicting him." The objections urged to this testimony were, that it was hearsay and incompetent; that said witness Ward was dead and any statement made by him could not be used as evidence against defendant. If the bill could be treated as agreed to by appellant — that is, as his statement or confession — then it might be admissible; but it is not stated that appellant agreed to it, except that he was present and did not object to any of said statement, except in the conclusion he declared that the statement of Ward that his face was blackened when he saw him that night was not correct; that he had a green handkerchief tied over the upper part of his face — unless, as stated above, the testimony could be considered as the statement of appellant himself or that by his silence, he made it his *Page 257 statement — then it was not introducable. Even had the witness Ward testified to the facts and had since died, under the ruling in Cline v. State, 36 Tex.Crim. Rep., his testimony could not be reproduced, much less could the unsworn statement of deceased Ward be introduced against appellant. Furthermore, as showing that the evidence was not introduced as a statement agred to by appellant, the court distinctly says that he admitted it for the purpose of contradicting appellant. Evidently, appellant could not be contradicted by this character of evidence; that is, by the unsworn statement of Ward, who had since died.
Appellant's third bill attempts to raise the question as to the admissibility of appellant's statement made to the witness Royston. This bill is not complete, in that it does not show as a fact that appellant was under arrest at the time, and had not been warned. This is merely raised by an objection. If appellant was properly warned, as is shown by the court, although not exactly contemporaneous in point of time with the statement made, it was admissible.
An objection made to the testimony of the witness George Pierce, as contained in bill of exceptions number 4, does not appear to have been well taken.
Nor did the court err in refusing to permit appellant to show, on cross-examination of the witness Leonardo Rilli, that certain of the relatives of deceased had attempted to bribe him (witness) to poison the wife of said deceased Guzzi, to prevent her giving testimony in this case. If said witnesses had been placed on the stand against appellant, then this character of evidence might have been used to impeach him; otherwise the appellant was not connected with anything done by said witness since the homicide.
Appellant criticises that portion of the charge of the court predicated solely on appellant's testimony, which tended to raise the issue of self-defense. Appellant contends that that portion of said charge which required appellant to actually believe that the wife of deceased had sent for him on a lawful mission, and he went there on said mission to see her was error. This insistence is that the word "actually" laid too great a burden upon appellant. It occurs to us that the use of the word "reasonably" would have been better.
Appellant also criticises the charge of the court in a succeeding paragraph to the effect: "Defendant would have no right to go to the house of said Guzzi for any unlawful purpose, if you find from the evidence he did so, and there provoke an assault by said Guzzi, and with intent to kill him or do him some serious bodily injury; and after so doing, to shoot and kill him, the said Guzzi, that be would not be justifiable." If appellant went to the house of Guzzi, as there is some testimony on his part tending to show, to see his wife on some lawful mission, such as to see her in regard to a divorce suit, on her request, and he was set upon, and shot at by deceased, he would have a perfect right to defend *Page 258 himself. However, if he went to the house of deceased for some purpose that was not lawful, as for the purpose of having carnal intercourse with her, then he would be a wrongdoer; and as we understand the authorities would not have the perfect right of self-defense Franklin v. State, 30 Texas Crim. App., 628. The court should have given a clear charge setting forth these theories.
Appellant also excepted to the failure of the court to charge on manslaughter. As stated above, the evidence suggests a theory of the case to the effect that appellant may have gone to the house of deceased on the night in question in order to secure a clandestine meeting with deceased's wife. If on another trial this theory is presented, it would be the duty of the court to charge on manslaughter. Franklin's case, supra.
For the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.