In this case the appellant was indicted in the District Court of Caldwell County, charged with the offense of murder. Upon a trial he was adjudged guilty of murder in the second degree, and his punishment assessed at five years confinement in the penitentiary.
1. The first ground in the motion for a new trial complains that the evidence is insufficient to sustain the judgment, and under this defendant insists that it is not shown that defendant killed the deceased, and that the evidence does not preclude the idea that deceased may not have died from other causes.
The shooting took place at the home of a Mexican where there was to be a dance, but the musicians failed to appear. Pablo Rodriguez *Page 363 testifies: "When deceased came there he got out of the buggy and hollered. I told him not to holler; he then went back to the buggy and was leaning on the wheel when defendant shot him. I did not hear him say anything, and did not hear defendant say a word. Defendant then went around the buggy and shot Senovia. I was in position to see the pistol when he shot deceased. Deceased was shot in the right side about an inch below the ribs. I stayed there until after deceased died. I do not remember any more than that he was killed. Deceased did not have a knife or a pistol." Senovia Remires testified: "I was with deceased. Deceased got out and hollered; he walked around the buggy, and was leaning on the back wheel when defendant shot him. He is the same man that shot me. Deceased did not have a pistol." Felipe Villalobos says he heard the first two shots and went to the scene of the shooting. Defendant had a pistol in his hand. Deceased was lying on the ground. He died in an hour and a half or two hours. I was present when he died. Christobal Sosa and Mattea Rocha also testified to deceased being shot in the side, and dying the same night.
The court gave the following charge at the request of the defendant: "You are further instructed that before you can convict the defendant in this case, the State must prove by competent testimony, to your entire satisfaction, and beyond a reasonable doubt, not only that the defendant shot the deceased, but that the shot was the actual cause of his death. And if you believe that the State has failed to make such proof, or if you have a reasonable doubt of such fact, then you must acquit the defendant."
The court also presented this question in his main charge, and instructed the jury that if the jury had any reasonable doubt that defendant shot deceased they would acquit him, or if they had any reasonable doubt that the wound inflicted was the cause of death, they could not convict defendant of murder in either degree or manslaughter. The jury under these charges found that defendant fired the shot, and this was the cause of death. There was evidence upon which to base such finding. One or more of the witnesses testified that deceased was shot in the side below the ribs; that defendant did the shooting. In the entire record there is nothing suggested that could have caused his death other than this shot. He is not shown to have been suffering from any disease, but is driving around in apparently sound health until just a few moments before he was shot. At the time he is shot he drops to the ground, exclaiming that he is "hurting in the stomach" (the place where he was shot), and lies there until he dies. In the case of Thompson v. State, 38 Tex.Crim. Rep., this court says:
"In the case at bar there is no question that the weapon was a deadly one, and that the deceased was stabbed with this weapon in the left breast, immediately under the nipple, in the region of the heart — one of the most vital points. It is true that the wound was not *Page 364 probed, but the result and effect of said wound are sufficiently manifested by the fact that, coincident with its infliction, the deceased, who was up to this time evidently a strong, healthy man, immediately collapsed and fell, as if having received a fatal stroke, never speaking but once thereafter, and then simply to remark, `She has cut me;' he was immediately carried to a house, and expired within fifteen minutes after the infliction of the wound. To say that the wound was not the immediate and proximate cause of the death of the deceased, it occurs to us, would be puerile. To illustrate: Two parties are seen engaged in an altercation. One draws a pistol and fires at his adversary, standing some ten or fifteen steps distant. At the crack of a pistol he immediately falls prostrate upon the ground. He utters an exclamation, `He has shot me.' He lives some ten or fifteen minutes thereafter, and on examination the pistol wound appears to have been inflicted on the left breast, in the region of the heart. No one subsequently probes this wound, but because of this fact to hold that the wound did not cause death, it seems to us, would be to set at naught an obvious fact which accords with common experience, that the bullet shot from the pistol was the proximate cause of death. It occurs to us that there can be no question that the wound inflicted by the defendant upon the deceased, Ben Grant, was fatal, and was the immediate and proximate cause of his death."
This holding of our court is approved in the text in 21 Cyc., page 999, where it is said: "Where a cause is shown sufficient to produce a complication resulting in death, and no other cause is shown to have existed, a sufficient basis for the conclusion that the result arose from the known cause is afforded. A mere possibility that death resulted from some cause other than the act of accused will not overcome facts proved leaving no rational grounds for doubt,' citing People v. Holmes, 118 Cal. 444; Cox v. People, 80 N.Y. 500; People v. Farrell (Mich.),100 N.W. 264; State v. Murphy, 9 Nev. 394; Mayfield v. State, 101 Tenn. 673; Waller v. People, 209 Ill. 284.
The holding in the Thompson case, supra, was approved by this court in the case of Scott v. State, 47 S.W. Rep., 531.
2. There was no error in the court not giving in charge the law applicable to circumstantial evidence. A witness testified positively that he saw the defendant shoot the deceased with a pistol, striking him in the side just below the ribs, and it is a matter of common knowledge that this is a dangerous wound.
3. The appellant complains because the court did not give special charge No. 2 requested by defendant. This charge was fully covered by the main charge in the following two paragraphs:
"A reasonable apprehension of death or serious bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting *Page 365 under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.
"If from the evidence you believe the defendant killed the said deceased, but further believe that at the time of so doing the deceased had made an attack on him which, from the manner and character of it, caused him to have a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him."
The court gave four special charges requested by defendant, which, in the light of the main charge, presented every theory of defendant's innocence and defense, and there was no error in refusing to give the other special instructions requested.
The jury were told, at the request of defendant: "If you believe from the testimony in this case, that on the night of the killing, certain parties made an unlawful attack upon the defendant, and that from such attack the defendant was in danger of his life, or serious bodily injuries, then you are instructed that the defendant had the right to use all means and force necessary to repel said attack, and to kill his assailants if necessary. And if you find from the testimony that the defendant fired a pistol at the parties making said unlawful assault upon him, and that the same was done to repel the attack then being made upon him, and that if firing said pistol at the parties so making said unlawful attack upon him, he shot and killed the deceased, then you are instructed that the defendant would be justified under the law, although the deceased was not one of the parties making said assault upon the defendant, and if you so find you will acquit the defendant."
"You are further instructed that although you may believe from the testimony that no unlawful attack was made upon the defendant at the time of the killing, and that he himself made an unlawful attack upon the other parties, still if you further believe from the testimony that after the defendant fired his pistol, that the other parties fired their firearms, and that the deceased was shot and killed by one of the shots fired by parties other than the defendant, then you are instructed that under the law the defendant would not be guilty, and you should acquit him. Or if there exists in your mind a reasonable doubt, as to whether the fatal shot was fired by the defendant or by some other party, then under the law you must give the defendant the benefit of the doubt and acquit him."
When the court presents the issues in his charge in chief, and then gives special instructions requested covering various phases of the testimony, there is no error in refusing other instructions relating to the same matter, being in effect the same charge, although differently worded.
4. Appellant complains of the action of the court in refusing to continue the case on account of the absence of a witness. As *Page 366 modified by the approval of the court, there would appear no error, but it appears by reading the application that all it was expected to prove by this witness was that one of the State's witnesses had made a different statement shortly after the shooting differing in many respects to the evidence of the witness on this trial, and which statements were denied by the witness. "A new trial will not be granted which is based upon the action of the court in refusing a continuance, when the only purpose of the absent witness was to impeach a State's witness. (Atkins v. State, 11 Texas Crim. App., 8.) "Where the testimony sought could only be available to impeach a State's witness, the continuance should be refused." (Garrett v. State, 37 Tex. Crim. 198. ) See also Rodgers v. State, 36 Tex.Crim. Rep.; Butts v. State, 35 Tex.Crim. Rep..
5. There are several complaints of the charge of the court, but no effort is made to point out any error therein, the complaint being too general to be considered. The charge presents the law as applicable to murder in the first and second degrees, manslaughter, and aggravated assault, and the jury is specifically informed that defendant can not be convicted of either murder or manslaughter unless they find beyond a reasonable doubt that he fired the shot and this was the cause of the death of deceased.
Appellant's counsel has ably presented the view of the case that the death of deceased is not shown to have been caused by the shot. The evidence does not suggest any other cause of death, even remotely, and as the contention of defendant hangs around this proposition all the way through the case, and having held that under the facts the jury, under a proper charge, would be authorized to find that this was the cause, and they having so found, there is no error suggested upon which we would be authorized to reverse the case.
The judgment is affirmed.
Affirmed.
ON REHEARING. May 17, 1911.