Appellant was convicted in the District Court of Smith County of the murder of one Jim Norris, and his punishment fixed at twenty-five years in the penitentiary.
There was no error in overruling the application for continuance. The indictment was returned April 15th, and the arrest followed on April 19th, and no subpœna appears to have been issued until May 19th, and then for a party of different name from the absent witness mentioned in the application. When appellant discovered his mistake as to the name of this witness some time after the subpœna was issued, the alleged absent witness had gone away from the county. No excuse appears for such mistake. In addition to the lack of diligence, *Page 116 the trial court heard evidence on the motion for a new trial, a controverting affidavit having been filed by the State setting up that said absent witness was a fugitive from the county. The evidence introduced upon the hearing of said motion is not set out, but in its absence the presumption would be that the trial court was satisfied of the facts set up, and we would have to uphold his ruling as correct.
It appears from the evidence in the case that the shooting of deceased occurred inside a barn on the premises occupied by him as a renter on the farm of appellant. Mrs. Norris, wife of deceased, testified that she witnessed the homicide from a door in the barn. It also appears that immediately after the shooting appellant came out of the barn, and Mrs. Norris said to him: "Oh, Mr. Taylor, you have killed my darling and have left me all alone with nothing but three little orphan children. You have killed the best friend on earth you had. Why did you do it?" and that appellant whirled, threw up his hand with the pistol in it, and then dropped it and said: "Go and see about him." This statement and conversation was objected to for various reasons. It appears from the record that appellant sharply contested the presence of Mrs. Norris at a place where she could see the killing, it being contended that she was in her dwelling when the shooting took place. The conversation above set out was stated to have occurred immediately after the shooting, and was admissible as reflecting Mrs. Norris' knowledge that appellant had shot her husband. Her request of him to know why he did it, was admissible. The whole matter was so close to the actual time and place of the shooting as to make it res gestae of that transaction. Moore v. State, 15 Texas Crim. App., 18, and Felder v. State, 23 Texas Crim. App., 477, are the only authorities cited by appellant on this point. As we understand those cases, both are against appellant's contention. There was other evidence as to the fact of Mr. Norris' children.
The appellant asked the following special charge: "You are, at the request of the defendant, instructed that the defendant had the right to carry the pistol from Tyler to his farm on the occasion of the homicide and the fact that he had a pistol on said occasion cannot be considered by you as a circumstance against him." The bill of exceptions is entirely destitute of any showing as to why the refusal of such charge was error. While one might have a right to carry a pistol from his home to another place, as to a farm for instance, if he intended to leave the pistol at said place; he would have no right to carry same from his home to his farm, or from farm to farm, and back and forth habitually or even occasionally for the mere purpose of having the pistol with him. Unless it affirmatively appear in the bill of exceptions that such carrying was for a purpose or under circumstances permitted by law, our presumption would be in favor of the correctness of the ruling of the trial court in refusing said charge.
Appellant's exception to paragraph 12 of the court's charge was too general. If not satisfied with said charge in the matters complained *Page 117 of, a special instruction should have been asked. The trial court told the jury in express terms that in determining if appellant acted in his necessary self-defense, they should view the transaction from his standpoint at the time, and there was no crror in refusing special charge No. 7. We think the charge of the trial court on self-defense a clear presentation of the law applicable to the facts, in this case, and that same is not open to the criticism directed thereat.
There were two shots fired by appellant according to his testimony. He said they were both fired, as he thought, when deceased was coming at him, and were about two seconds apart. There would seem no reason for attempting to charge different legal aspects of self-defense as to the two shots in such case. Mrs. Norris, wife of deceased, stated that appellant fired two shots as fast as he could, and that her husband then fell and appellant shot at him again after he fell. Two bullet wounds were found in the body of deceased. There was another eyewitness, a negro, who went to the scene with appellant, who testified that there were only two shots, and that after appellant fired the first time deceased started running off and whirled and as he went to whirl appellant fired the second shot. We do not think under the facts as same appear in the record there was necessity for the application on behalf of appellant of separate legal phases pertaining to his right of self-defense at the time he fired the second or third shot, as the case might be, but appellant asked a special charge seeking to so apply the law of self-defense to each shot, and while the court refused this charge, he gave substantially the same law in the main charge.
It seems that during the argument of the case before the jury there arose a contention between counsel for the State and appellant as to whether or not appellant could have averted the necessity for taking the life of deceased by merely presenting his pistol as deceased advanced upon him, this being the theory of attack by deceased to which appellant testified. Thereupon, appellant asked of the court two special charges which, in effect, seem to reiterate propositions of law already embraced in the main charge.
We do not think the purpose of Article 737a is to require of the court additional charges after or during the argument, for the purpose of settling differences of construction of the language or effect of the charge, made by opposing counsel. An examination of Article 737a discloses that there are three grounds stated in said article wherein additional charges to that given before the argument begins, are permitted, to-wit: improper argument, additional charges asked by the jury, or when other evidence is permitted after the argument is begun. Our opinion is that when improper argument is used by the State, appellant could present to the trial court his request in writing that the jury be instructed that such argument, in the respects narrated, was improper and that the jury should disregard same. This, of course, when necessary, would present the matter here for review in a proper case. *Page 118
Appellant presents a number of objections to questions asked by the State's counsel, and also to arguments made by the prosecution. These matters are quite lengthy and no good purpose would be served by setting them out. We have carefully examined each of same but are of opinion that no error appears in any of them as here presented.
It is made to appear that when the jury retired they stood ten for murder and two for manslaughter, and that some one made a remark to the effect that if a man was convicted of manslaughter he could not be thereafter convicted of murder. This remark is urged as misconduct of the jury. Only one juror testified on the hearing of the motion for a new trial. He said he did not know who made this remark; that it was incidental and had no weight with him. This was no such misconduct of the jury as would justify a new trial under our statute.
A new trial was asked because of the newly discovered evidence of one Elliott and one Mrs. Grayson whose affidavits were attached to the motion. We think no diligence was shown as to the testimony of Mrs. Grayson, it appearing that the testimony on the trial showed her to be present at a conversation then inquired about, the substance of which constitutes her newly discovered testimony. As to the testimony of the newly discovered witness Elliott, it appears from the record that a number of witnesses testified on this trial to sundry threats made by deceased shortly before the homicide. The testimony of said Elliott appears to be to a threat made by deceased some months prior to the homicide. We think this cumulative testimony for which a new trial should not be granted.
We have carefully examined the various contentions made by appellant, and being unable to discover reversible error in any of them, the judgment of the trial court will be affirmed.
Affirmed.
ON REHEARING. April 13, 1921.