After a careful examination of the record, I can not agree to the disposition of this case as made by a majority of the court. I believe the motion for continuance should have been granted. This was the first application for continuance, and was predicated on the absence of John and Henry Herron; Margaret Foster, resident of Bowie County; R.E. Houston, a resident of Gregg County; and Harry Morris, a resident of Bexar County. The opinion of the court states that the diligence as to John and *Page 111 Henry Herron was entirely insufficient; that the witness Morris was beyond the State when the case was called on the 23d of May, and no process was asked for him. As to the witness Houston, that the State's testimony showed he was not present, and did not hear the conversation between appellant and Hardin alluded to by appellant in his application. The court's explanation to this bill is to the effect that the testimony of Morris was merely cumulative; that the witnesses John and Henry Herron had gone beyond the jurisdiction of the court, and that fact was known to the defendant's counsel before the court met, which was on the 23d day of May, 1898, — the case being set for trial on the 31st of May, — and no effort was made to take the depositions of said John and Henry Herron, and when the docket was called for orders on May 23d no additional process was asked for the witness Henry Morris; and that the witness W.C. Hardin testified that the witness Houston was not present, and did not hear the conversation between himself and defendant related by him on the witness stand; and, further, testified that, just as said conversation closed, Joe Barkman came up to where he and defendant had said conversation, and Joe Barkman was present during the trial of defendant, and was not put upon the witness stand and asked to state whether or not Houston was present at or near the place where this conversation occurred. It would appear that both the trial court and the majority of this court concede the materiality of the absent testimony, but justify the action of the lower court in overruling the motion for continuance solely on the ground of a want of diligence on the part of defendant. I do not deem it necessary here to invoke the rule applicable to motions for new trial based on overruling motions for continuance, — that is, that a new rule applies; and although diligence may not have been used, yet, if the testimony appears to be material and probably true, that a new trial prevails, because I believe that the record here shows diligence on the part of appellant to obtain at least some of said testimony.
Appellant shows that the case had been previously tried; that the two Herrons were under subpœna and had attended and testified on said trial; that said witnesses remained in Bowie County, and were in business until a very short time ago; that about the 15th of May, 1898, they joined an Arkansas regiment, and were at Little Rock a short time, and from there they were removed to Mobile, Ala., or to Chickamauga, Tenn., defendant not being certain which point; and that he has not been able to locate said witnesses and get their depositions. I think as to these witnesses the diligence was reasonable. The fact that they were beyond the jurisdiction of the court, and defendant's counsel knew this before the 23d of May, 1898, as certified by the court, may be true; but it is shown that, while they were absent from the State, they were in the army, and on the move, and appellant had only from the 15th of May, at most, until the 31st to locate them and take their depositions. The witnesses being in the army, *Page 112 and under marching orders, appellant could scarcely anticipate where they would be at any given time; and I believe his failure to get their depositions was justified by the excuse given.
As to the witness Houston, who was served, the return and the physician's certificate accompanying it showed that he was sick and unable to attend court. And the fact that the State's witness Hardin testified that Houston was not present and did not hear the conversation between himself and defendant related by him on the witness stand, it does not occur to me, was a ground for overruling the continuance. If so, a motion for continuance can always be defeated by testimony of a State's witness contradicting what an application for continuance shows a defendant's witness would prove. Nor should it defeat this application that Joe Barkman, whom the court certifies came up to where said Hardin and defendant had said conversation just as it closed, and that Joe Barkman was present during the trial of defendant, and was not put on the witness stand and asked to state whether or not Houston was present at and near the place where said conversation occurred. The important matter here to be proved by the absent witness was that the conversation between Hardin and defendant, as testified to by Hardin on behalf of the State, did not occur. The application shows that the witness Houston was present at the time when said conversation is alleged to have occurred between Hardin and defendant; and that defendant did not use the language in regard to deceased imputed to him by said Hardin. Now, the fact that Hardin testified that Barkman came up just "at the close of said conversation," as certified by the court, and was present during the trial, and was not put on the stand and asked to state whether or not Houston was present at or near the place where this conversation occurred, is no answer to this proposition. It will be observed that the court makes the integrity of appellant's application for continuance hinge entirely on the testimony of Hardin, the very witness defendant proposed to contradict by his absent witness. If a continuance can be disposed of in this manner, then all that is necessary is for the court to show that some State's witness contradicted the testimony proposed to be proved by defendant's absent witness, and so defeat an application for continuance.
As to the witness Morris, I do not believe the diligence was sufficient. Process should have been issued to Bexar County for him sooner.
Appellant excepted to the action of the court in regard to the testimony of C.A. Hooks, and, in order to fully present this matter, I will here insert the bill of exceptions raising this question: "Be it remembered, that upon a trial for this cause the State introduced C.A. Hooks as a witness, who testified that he was a justice of the peace at Texarkana, Bowie County, Texas, on May 18 and 19, 1897, and as such held the inquest over the body of one S.P. Damon; that defendant was not present; that O.D. Perry testified as a witness before him. The State's counsel then asked the witness what O.D. *Page 113 Perry testified to, to which question defendant, by counsel, objected, upon the ground that defendant was not present, and that the same was immaterial and irrelevant. The court overruled defendant's objection, to which ruling of the court counsel for defendant then and there excepted; and said witness testified as follows: `Damon was killed on the night of May 18, 1897, and I held the inquest on the 19th.' O.D. Perry testified as follows: That he was in the saloon at the time the killing occurred, and Frank Barkman was drinking. He said that he saw that negro Ed Parker, and there seemed to be some trouble between him and Damon, and that Barkman made some remark about it, and the negro persisted in doing something to him. He said that the negro had hold of the lapel of his coat, and Perry made some remark about it; and Frank Barkman made the remark to Perry, and said, `God damn him, he would kill anybody that would do so and so to him,' and drew his pistol about that time, or probably had it in his hand, and raised it like he was in the act of striking at Damon, and the pistol fired, and it killed Damon. He was shot behind the ear. Perry also testified that he asked defendant why he let a negro do a white man that way, and defendant said, `I told him to,' and that the defendant raised his pistol, and the pistol went off. Defendant here tenders this, his bill of exceptions, and asks to have the same approved and filed as a part of the record in this case. The testimony of the witness C.A. Hooks further showed that the testimony of O.D. Perry, taken at the inquest over the killing of Damon, was not reduced to writing and signed by the said Perry. The theory of the State was that the defendant had killed Perry because Perry was a material witness against him (defendant) in the case for the killing of Damon, and wanted to get him out of the way. The testimony of the witness Hooks, objected to as above set out, was permitted to go to the jury, to be considered by them solely for the purpose of aiding them in determining the motive of defendant in killing the said Perry. With this explanation, the above bill is approved and ordered filed." Of course in the trial of appellant for killing Perry it was competent for the State to introduce testimony showing motive for such killing; and I do not controvert the proposition that it was competent to show in this case, as a motive for appellant's killing Perry, that Perry was a witness against him in another criminal case, provided that appellant had knowledge that Perry was a witness against him. Kunde v. State, 22 Texas Crim. App., 65; Hudson v. State, 28 Texas Crim. App., 323. That is not the question here; but I insist that this matter is to be settled by the bill of exceptions itself, and it shows, as presented, that the testimony was not admissible. Observe that the State undertook to prove by Hooks, the justice of the peace who held the inquest over the body of Damon, what the deceased, Perry, who was a witness at that inquest proceeding, testified in regard to his being killed by *Page 114 defendant. It was shown in this connection that defendant was not present; and the testimony was objected to upon the ground that defendant was not present, and that the same was immaterial and irrelevant. The court explains his admission of the details of said testimony before the justice, in the absence of defendant, by stating: "That the theory of the State was that defendant had killed Perry because Perry was a material witness against him [defendant] in the case for the killing of Damon, and wanted to get him out of the way, and that the testimony of Hooks was permitted to go to the jury to show motive by appellant in killing Perry." Nowhere does the court explain or qualify the bill by stating that, although appellant was not present present at the inquest trial, knowledge that appellant was a witness on that trial was brought home to him. I understand that a bill of exceptions should assert the very ground of objection relied on and which strikes at the inadmissibility of the offered testimony. Here testimony taken on an inquest proceeding was offered against defendant. Obviously the objection here to be made was that the same was irrelevant because appellant was not present at said inquest, and was therefore not charged with notice of said proceeding. Now, if same was admissible upon some other ground, depending upon some extraneous fact, it seems to me that this should come from the party offering the testimony. As to the defendant it was hearsay; but the State could reply, true, he was not present, but that it proposed to make it admissible by other testimony showing that appellant knew of Perry's testimony before said magistrate. Under the authorities, the bill showed all that was necessary to exclude the testimony; and in the absence of some explanation in the bill itself by the court, showing that it was admitted on proof of some other fact that rendered it admissible, in my opinion it was not competent testimony. The bill on its face shows all that was necessary to exclude it; that is, as to appellant (he not being present), hearsay and irrelevant. I notice that, in the opinion of the majority of the court, reference is made to the statement of facts to show that other proof was introduced showing that appellant must have had knowledge that deceased Perry was a witness against him in said case. But I do not understand that, under the authorities, we can appeal to the statement of facts to settle this question, but must be governed by the bill of exceptions itself. I would further remark that I do not here discuss the details of the testimony of Perry in regard to the killing of Damon, as I do not understand the testimony to be objected to on that account. As stated before, the fact that Perry was a witness against defendant in that case could be proved, if appellant had knowledge that he was such witness. But how far the details of his testimony could be gone into originally is a very important question. The State introduced one Tisdale, and he testified that he heard the witnesses Armsworthy and Hickerson testify before the grand jury, and that neither of them testified that Bill Mathis was in the saloon at the time defendant shot *Page 115 and killed Perry. The State's counsel then asked witness if anyone had requested him to pay particular attention who the witnesses Armsworthy and Hickerson swore were present at the killing of Perry, and, if so, who it was that so requested him. Appellant objected to the witness stating that he was cautioned by anyone to remember who said witnesses, while in the grand jury, swore were present at the time of the killing, on the ground that the same was hearsay and irrelevant. The court overruled the objection, and the witness stated that R.D. Hart, the district attorney, cautioned him in regard to said matter. Now, if it had been shown that Armsworthy and Hickerson had been asked, while in the grand jury room, to state whether or not Mathis was present, and they had answered that he was not; or if the bill had shown that the general question had been pro-pounded to said witnesses Armsworthy and Hickerson to state to the grand jury all persons who were present in the saloon at the time of the homicide, and they had stated the names of all who were present, and had not included Mathis, — then it might have been competent for the State to have shown in that connection by the witness Tisdale that he was sure that they stated Mathis was not present, because he had been cautioned by the district attorney to watch said witnesses as to that matter. But here we have the witness Tisdale merely stating that he was sure that Armsworthy and Hickerson did not state in the grand jury room that Mathis was present at the shooting. The fact that he did not state it, as here presented, does not signify anything. It does not show definitely that they made any statement at all on the subject, or that they were even asked about it. So that the caution given him by the district attorney in regard to said matter was irrelevant so far as shown by this bill. Because of the erroneous rulings of the trial judge pointed out, which I regard as involving material matters, I believe the judgment should be reversed, and the cause remanded.