This is an appeal from a conviction for murder in which five years in the penitentiary was assessed.
On two occasions prior hereto has this case been reviewed. The first opinion will be found reported in 72 Tex.Crim. Rep., 163 S.W. Rep., 66; the second in 79 Tex.Crim. Rep., 183 S.W. Rep., 1153.
Much of the evidence from the standpoint of both the State and appellant is shown in the former opinions, and will not be repeated here except as it may be necessary to discuss intelligently some bill of exceptions.
Application for continuance on account of the absence of Mrs. F.P. Mason, appellant's mother, and Mrs. Grace Woody, his sister, was overruled. There was no error in this. No diligence whatever is shown. It is stated that "he has heretofore had subpoenas issued out of this court for both of said witnesses." When they were issued, what became of them, whether they were served, none of these things are shown. It is stated that the witnesses have attended upon the court at all former terms, when the case was called, and that "defendant has notified said witnesses of the date set for trial." All of this might be true, and yet no legal diligence is shown. This was appellant's sixth application for continuance, four of which had been granted. So many authorities are available on the lack of diligence shown, we deem it entirely unnecessary to refer to them. They will be found collated under Sections 314, 315, Branch's Ann. P.C. *Page 562
It was the theory of appellant that the homicide was the culmination of a long series of uncalled for and unprovoked abuse and overbearing conduct by the deceased towards appellant. It was the theory of the State that the trouble occurring in the field a short time before the homicide was immediately brought about on account of some insulting remarks made by appellant regarding deceased's sister a few nights before. Bill of exceptions No. 2 sets out several questions and answers which were propounded to, and answered by appellant, on cross-examination, and recites that appellant objected to such testimony at the time it was brought out by the State. The bill is not entirely satisfactory. The qualification of the trial judge shows it was a part of a conversation testified to by appellant on his direct examination, and an examination of the record discloses that this is true. Appellant, on his direct examination, had testified that a few nights before the homicide he had made a statement to his, appellant's brother, not knowing that deceased was present or within hearing distance; "that he had moved Cora Shelton's piano for her, and that she and her `pimp' were going to Amarillo," and that then for the first time he learned of deceased's presence when he challenged the statement. On cross-examination of appellant it was developed that in this same conversation he told deceased that he had rented his sister, Cora Shelton, a piano while she was living at Fort Worth, and that she was running a "sporting house" at that time, and was asked if it was not upon that statement being made by him that deceased cursed him and told him to come outside of the yard and repeat the language. We are unable to discover any error in the ruling of the court in the admission of this testimony. It was part of the same conversation which had been testified to by appellant on his direct examination and shed light on the actions of the parties at the time and immediately preceding the homicide. Appellant also complains because the court permitted Mrs. Cora Franks, formerly Cora Shelton, to testify in rebuttal to the statement made by appellant that she had never run, or had been in any way connected in the operation of a "sporting house" in the city of Fort Worth. Appellant had admitted that he had told deceased a few nights before the homicide that his sister was at a certain time running a "sporting house" in the city of Fort Worth. We have been unable to discover any ground for the complaint of appellant, that this lady was permitted to say in rebuttal that this was not true.
While appellant was testifying he was asked upon cross-examination how long he had been out of the Federal penitentiary, to which he replied that he believed it was the 7th day of February, 1919, that he was released, and in reply to a question answered that he was sentenced to the Federal penitentiary by the Federal court at Fort Worth on April 20, 1918, for a conspiracy to sell liquor to the soldiers at the camp there. Many objections were urged to eliciting this information from appellant; one because the homicide for which he was being tried were committed in 1912, and the conviction in the Federal court occurring *Page 563 many years subsequent thereto, evidence thereof was not admissible, and because the State was eliciting the details of the offense of which he was convicted in the Federal court. In the instant case appellant filed an application for suspended sentence. It was permissible on this issue for the State to show that he had been convicted and sentenced to the Federal penitentiary. It would be immaterial whether the conviction inquired about occurred prior or subsequent to the date of the offense for which he was on trial. When the question of suspended sentence became an issue the character of accused at the time of the trial, the time he is seeking a suspended sentence, is the matter which the jury is to determine, and not alone his character prior to the time of the alleged commission of the offense for which he is on trial. Williams v. State,83 Tex. Crim. 26, 201 S.W. Rep., 188.
We cannot agree to appellant's complaint that the State was permitted to go into the details of the Federal offense. The only inquiry made of him was if it was not for a conspiracy to sell liquor to the soldiers at Fort Worth. That was the offense itself; no details of the manner of the commission of the offense being inquired into.
After this admission on the part of appellant, the State, over his objection, was allowed to introduce a copy of the judgment of conviction from the Federal court. Many objections were urged by appellant to the admission of this instrument. Without discussing the objections in detail we will dispose of the matter upon the ground that we have been unable to discover where any injury could have resulted to appellant, even though the copy of the judgment was erroneously admitted. It showed, and could have shown no more than appellant had already admitted, to-wit: that he had been convicted in the Federal court of a conspiracy to sell intoxicating liquor to the soldiers. The court in his charge limited all of this testimony to a consideration of the question of whether the jury would suspend sentence in the event they convicted appellant.
Appellant excepted to the charge of the court in many particulars, to all of which we have given careful attention. The paragraphs of the charge to which special exceptions were directed have been examined by us in the light of the exceptions, and if any foundation existed for the exceptions at the time they were presented, corrections must have been made where objectionable features were pointed out by the exceptions, because the charge as it now appears in the record is not subject to the complaints urged.
After a careful review of the record before us we discover no error which would authorize a reversal of this judgment, and the same is therefore ordered affirmed.
Affirmed. *Page 564
ON REHEARING. January 11, 1922.