Appellant was convicted of murder, and his punishment assessed at five years confinement in the penitentiary.
This is the second appeal. The first is reported in74 Tex. Crim. 505, 169 S.W. Rep., 299. A sufficient statement was there made, so that the questions now decided can be understood. If any additional statement on any question becomes necessary, we will make it. There is no substantial difference of the material facts or testimony on this trial from what was shown on the other appeal. The case this time *Page 442 was tried substantially in accordance with the opinion on the other appeal, and all questions therein held error were avoided on this trial.
This is at least the third trial and conviction. The trial court granted a new trial after the first, and this court reversed the judgment on the second trial. All the previous trials were in Cherokee County, where the homicide occurred in July, 1910. After the reversal by this court, the venue was changed to Smith County, where this trial occurred.
Appellant made a motion for a continuance. This was at least his fourth application for a continuance. The State contends, and reasonably showed, that by his action, appellant secured two other continuances. The application this time was made because of the absence of three witnesses. The bill, as qualified, shows that pending the trial two of these witnesses appeared and testified. The record does not disclose how their attendance was secured
The absent witness who did not appear and testify was Louis Jennings. The State vigorously and properly contested appellant's application on the grounds: of lack of diligence; that the witness was a transient person; that the testimony appellant claimed he would give was not probably true; and that, even if present, he would not testify as claimed; and on other grounds. The appellant replied to the State's contest. The record discloses that the court heard evidence on this contest. Whether there was additional evidence from the affidavits filed by the respective parties is not definitely disclosed. If there was additional testimony heard, the record does not disclose what it was. The overruling of said application and the absence of the witness, was made a ground for a new trial by appellant in his motion therefor. The State again contested that ground of this motion. The appellant replied thereto. This motion was acted upon by the court five days after the verdict and judgment. The record discloses with certainty that the court heard evidence at that time on said ground of appellant's motion. What that evidence was is not disclosed by this record. Under these circumstances, in accordance with the long line of uniform decisions of this court, we must presume that the evidence heard clearly justified the action of the court, and that in the absence of a proper bill or statement of facts of the evidence introduced and filed during term time, we can not do otherwise than hold that the action of the court presents no error. Black v. State, 41 Tex. Crim. 185, 53 S.W. Rep., 116; Reinhard v. State, 52 Tex. Crim. 59, 106 S.W. Rep., 128; Jarrett v. State, 55 Tex. Crim. 550, 117 S.W. Rep., 833; Mikel v. State, 43 Tex. Crim. 615, 68 S.W. Rep., 512; Williams v. State, 56 Tex. Crim. 225, 120 S.W. Rep., 421; Probast v. State, 60 Tex. Crim. 608, 133 S.W. Rep., 263; Tarleton v. State, 62 S.W. Rep., 748; Knight v. State, 64 Tex.Crim. Rep., 144 S.W. Rep., 967; Bailey v. State, 65 Tex.Crim. Rep., 144 S.W. Rep., 996. See, also, Jordan v. State, 10 Tex. 502; Sharp v. State, 6 Texas Crim. App., 650. It is unnecessarily to collate *Page 443 the large number of decisions by this court down to this very date following these decisions.
However, we will discuss the question further on its merits. The claimed testimony of the absent witness, upon consideration of all the other testimony in the case, evidently if he would have testified at all as claimed by appellant, is not all of what he would have testified. Perhaps it was not necessary for appellant in his application to state all the witness would have testified, but merely to state, as he did, such part of what he claims he would have testified which would tend to be in his favor. We think, without stating it, that as stated by appellant, if he would have so sworn, it would be considered as material in his favor. Appellant's bill on this subject was not presented to, nor acted upon by the trial judge, until nearly two months after the term of court had adjourned. The court, as stated, had heard the motion for a continuance, and the motion for a new trial on that ground, and had heard all the evidence on the trial, and, of course, whatever evidence was introduced in the contest of both motions, and from all this was prepared to make, and did make, his explanation and qualification of the bill, which is quite lengthy, so that it could be understood by this court. We will not give all of it, but the substance of it. Appellant in no way contested the court's qualification, and is, therefore, under all the authorities, bound thereby.
The substance of the court's qualification was: (1) That the case had been pending over five years, and the appellant had obtained three previous continuances, the first on account of the absence of his brother, who never afterwards attended any of the terms of court, and never testified. That about two hundred witnesses attended the trial at each term, and he deemed it probable that at no time could the attendance of all witnesses be had. That said witness Jennings was served with a subpoena in Cherokee County before the July term, 1915, and attended that term. The motion for a continuance itself shows that no process had ever been issued or served for said witness by appellant until for said July term. (2) That the court believed said witness was a transient person and not likely to be had at any term of court, unless he was then in Navarro County. While that point was contested, the testimony was amply sufficient to authorize the court to conclude as he did. (3) That the testimony expected to be had from said witness, under the circumstances of its discovery, induced the court to believe that the witness would probably not testify as claimed in the application; and that if he did so, his testimony would be untrue. This also was a contested issue, but the record was sufficient to justify the court in his conclusions. (4) That it was known that it would take five or six days to try the case, and he believed, with proper diligence, if the witness was in Navarro County, as the application alleged, his attendance could be secured. (5) That appellant had no process issued to Navarro County until the third day of the trial. In the meantime, the State had process issued to Dallas County for the witness. (6) That the evidence of Brown and Charley Jennings, *Page 444 together with their affidavits to appellant's answer to the contest of his motion for a continuance, showed that the absent witness told them he was going west to pick cotton and would remain until after cotton picking time. That the court knows this would have been as late as December 1st, and the application showed that one or both of these parties, Brown or Jennings, communicated with defendant, and that they had the information two or three weeks before the trial, and their testimony did not exclude the idea that they told defendant that the witness would be absent until after adjournment of this court, and defendant made no effort to prevent the witness from leaving or to have him returned. (7) That no affidavit of the absent witness accompanied the motion for a new trial, although the hearing on the motion was five days after the verdict was rendered. (8) That, on Saturday morning, before the court charged the jury and arguments had begun, and some thirty-four hours before the verdict was returned, one of the attorneys for the State informed one of the attorneys for appellant that said witness was in Collin County, between Plano and McKinney, and the defendant did not then have any process issued for said witness, and made no motion to postpone to procure him either at the conclusion of the evidence Friday night, or when he got this information. That, in addition to this, no witness on the trial testified that said absent witness was anywhere about the scene of the homicide, or in the neighborhood thereof, when it occurred.
The statute (art. 608, subdiv. 6, C.C.P.), expressly provides that no application for a continuance "shall be granted as a matter of right"; that the truth as well as the merits thereof and its sufficiency "shall be addressed to the sound discretion of the court called to pass upon the same"; but that if a defendant is convicted, and it appears on the trial that the absent witness's evidence was of a material character, and the facts set forth in his application were probably true, a new trial should be granted. All this, as the decisions uniformly hold, must necessarily be left to the trial judge, who sees and hears the whole proceeding and all the witnesses. It is true his discretion is not an arbitrary, but a judicial one. In addition to the statute, the rules applicable to a continuance have been laid down by many of the decisions of this court and have been announced by Judge White in his Ann. C.C.P. We will restate some of them.
"The law requires of a defendant a rigid compliance with the exact terms prescribed for such applications, and if there is a lack of diligence, apparent from the application or otherwise, . . . its mandate is inexorable and the trial must proceed." Skipworth v. State, 8 Texas C. App., 135.
"We know of no rule of law which requires the State to show a want of diligence in opposition to a continuance. It devolves upon the defendant to show, affirmatively and distinctly, that he has used all the diligence to obtain his witness required by law." Walker v. State, 13 Texas C. App., 618.
"The onus is upon the defendant to establish the exercise of *Page 445 diligence in support of an application for a continuance. * * * The burden is upon the party seeking a continuance to show himself entitled to it by definite, exact and certain averments." Long v. State, 17 Texas C. App., 128.
"Neither will this court, nor the trial court supply by inference and presumption allegations not contained in an application for a continuance which should be stated therein. The application must be complete within and of itself in order to require this court to say it was erroneously refused. Presumption when indulged will and must be in favor of the rulings of the court in reference to the matter complained of, and not against same." Massie v. State, 30 Texas C. App., 64.
The cases unquestionably establish the rule that an accused can not cease his diligence to secure his witness when the trial begins, but must continue it up to the very time, at least, till the arguments are concluded. (Mitchell v. State, 36 Tex. Crim. 278. )
"The court on appeal will not revise or reverse the judgment of the lower court refusing a continuance, and the overruling of the motion for new trial based upon the application for continuance, unless it is made to appear by the evidence adduced at the trial, that the proposed absent testimony was relevant, material and probably true." Sec. 647, White's Ann. C.C.P., citing a large number of cases.
We think all these rules are clearly applicable herein. Appellant claims that he never discovered this witness, or his purported testimony until about five years after the homicide, although he claimed the witness lived in the neighborhood where the killing occurred and claimed to have been present and heard and saw what occurred at the time of the killing. He had had at least two trials of his case before he claimed to have discovered this witness, and there had been several continuances besides. That a large number, some two hundred witnesses, attended the trials and the court when the case was not tried. The evidence heard by the judge clearly justified him to believe that, even if the witness had been obtained, he probably would not have testified as appellant claims he would, and that, if he had so testified, his testimony would have been untrue. In addition, the evidence clearly justified the judge to find, as he did, that the diligence was not sufficient to entitle him to a continuance. That he actually learned some two or three weeks before the trial, or by any sort of diligence could have so learned, that the witness would be absent and not attend the trial when it was tried, and after learning this, he used no process or diligence whatever to prevent the witness going off, nor to secure his attendance at the proper time. Also, that he waited three days after he learned that the witness was not present, and his motion for a continuance had been overruled, before he had any process whatever issued to where he claimed his information was the witness could then be found. The record in no way excludes the idea that, if he had then had process promptly issued for the witness, he could not have been found within that three days and his attendance secured. And, *Page 446 further, that at least a day or longer before the trial was finally concluded, he was informed that said witness was in Collin County; yet he then had no process issued for him, and made no application to postpone the case until he could ascertain whether or not he could then procure him, and the evidence substantially shows, and the trial judge so held, that the witness was a transient. And, further, that, although five days elapsed from the time the verdict was rendered until the court acted on his motion for new trial, he did not procure the affidavit of his absent witness to show that he would testify as claimed by him. So that, under no contingency, did the court err in overruling his motion for a continuance, nor in refusing him a new trial on that ground.
Appellant has some thirty-five other bills. Several of them are to the admission of some testimony; others, to questions asked by the State, but not answered by the witnesses; some others to very brief statements in arguments by the different attorneys representing the State, they consisting of only from one to three lines of typewritten matter; still others, to objections to the court's charge and to the refusal of the court to give some of his special charges asked. The court, before approving many of his bills, explained and qualified them. We have considered each and all of his bills. It will be unnecessary to now take them up separately and discuss them. We think none of them present reversible error.
The record in this, and also on the previous appeal, shows that an array of able, experienced and skillful attorneys were engaged on each side and every point, from start to finish, was hotly contested. Appellant's attorneys undertook and doubtless did, save every point which they thought squinted at error, and guarded in every conceivable way what they regarded as the rights of their client, which was their duty.
Appellant introduced some witnesses and had them testify to a part of a conversation they had with deceased shortly before the homicide, and therein of threats he had made against appellant. On cross-examination, the State asked the witnesses, and had them testify, to the balance of the conversation of the deceased at the time at which they claimed he made said threats. Some of appellant's bills show that he objected to this testimony on cross-examination. In our opinion it was clearly admissible under the decisions and our statute itself. (Art. 811, Vernon's C.C.P., and decisions noted thereunder.)
Some other of his bills were to the mere asking of some questions by the State's side, to which he objected, and the court sustained his objections. The witnesses were not permitted, and did not answer the questions. It is unnecessary to particularize these. These bills show no error. Huggins v. State, 60 Tex.Crim. Rep.; Morrow v. State, 56 Tex. Crim. 519; Phillips v. State, 59 Tex.Crim. Rep.; Hart v. State, 57 Tex.Crim. Rep.; Warthan v. State, 41 Tex. Crim. 385; Sweeney v. State, 65 Tex.Crim. Rep.. In some of the bills, we think the court incorrectly sustained appellant's objections to the questions and refused to permit the witnesses *Page 447 to answer, the testimony being admissible. But as the court sustained appellant's objections and did not permit the witness to answer, this would be to his advantage, and not his injury.
Bills to the argument of the prosecuting attorneys, which is claimed by appellant to be objectionable, are frequently before us, and have been before the court from its foundation. The rules pertaining thereto were laid down by this court long ago in such cases as Bass v. State, 16 Texas C. App., 62; Pierson v. State, 18 Texas C. App., 524; House v. State, 19 Texas C. App., 227; Tweedle v. State, 29 Texas C. App., 586, and many other cases. In more recent cases, such as Mooney v. State, 76 Tex. Crim. 359, 176 S.W. Rep., 56; Little v. State, 77 Tex. Crim. 335, 178 S.W. Rep., 326; Miller v. State, 79 Texas Crim. Rep., not yet reported, and many others, we have had occasion to discuss the earlier cases and reiterate and reaffirm the rules established therein pertaining thereto. We see no necessity of again reviewing this question or the authorities. Clearly none, nor all together, of appellant's bills on this subject show any error. In most instances, if not all, the prosecuting attorney's arguments were not out of the record, and the record gave them a basis for their argument. But whether it did or not in every instance, the court, as a matter of precaution, expressly charged the jury not to consider the argument of counsel to which appellant excepted. So that, in any event, if the argument was objectionable, it was cured by the action of the court.
The court's main charge, together with the special charges of appellant which he gave, we think, correctly announce the law applicable in this case, and submitted every issue properly raised by the testimony in appellant's behalf. Some of appellant's requested charges which were refused were correctly refused, because the points were either covered by the court's main charge, or by those of appellant which the court gave. The bills show that when the court prepared his main charge and at the proper time, submitted it to appellant's attorneys, they then made quite a number of objections thereto, both of omission and commission. The court explained and qualified his bill, where all these matters are presented, by stating: "Certain changes were made in the court's main charge to meet the objections contained and set out in this bill. Reference is made to the main charge to show wherein same was changed and some of the defendant's special charges were given at defendant's request covering the matters complained of and after said changes were made the general charge was resubmitted to the attorneys for defendant and no further objection was made thereto." On the former appeal it was held by this court that provoking the difficulty was raised and that it was the duty of the court to charge thereon. The testimony raising this issue is substantially the same now as it was on the former trial, and there is no such change therein as to not require a charge on that subject. The court's charge, in connection with those of appellant's which he gave, correctly presented the issue to the jury on the question of what other *Page 448 means appellant must resort to before killing deceased, both under the statute and the decisions pertaining thereto. We see no necessity now of taking up these various objections to the court's charge and the refusal of appellant's special charges and discussing them separately.
The record discloses that the case was tried by the lower court with great care, and in every way appellant had a fair and impartial trial, and his rights were in every proper way guarded by the court, the issues properly submitted, and the evidence amply sufficient to sustain the conviction. There is no reversible error presented. The judgment will, therefore, be affirmed.
Affirmed.
ON REHEARING. May 31, 1916.