Appellant was convicted of murder, and his punishment assessed at ten years in the penitentiary.
In practically every contested case of this character the evidence is conflicting, and frequently more or less impeachment of the material witnesses. All that occurred in this case. But as is always the case, such matters are for the jury and the lower court, and not for this court. A brief statement of the testimony only is necessary.
On Christmas evening late Florence Holloway, the deceased, was shot and killed. It occurred at a negro house of prostitution, in Waco. Deceased was an inmate of that house. A dance was in progress, or had just been, at the time of the killing. There were a large number of negro women prostitutes in the house and at the dance, and also a large number of negro men and some Mexicans. Most all attendants had been drinking. Some were drunk; others, not so drunk; and still perhaps some who had drunk none or very little.
That two persons as principals were implicated in the killing is certain. Who those two persons were was sharply contested, and the evidence directly conflicting. The State contended that appellant was one of the principals under any contingency, and that either Otto Manus, or another person, whom the witnesses designated and called "Yellow Boy," was the other principal. Whether Otto Manus and Yellow Boy was one and the same person was also in controversy. Some of the witnesses swore in effect that Otto Manus and Yellow Boy were one and the same person; another swore in effect that they were not one and the same person, that Yellow Boy was a different person from Otto Manus; others swore they could not tell whether they were one and the same person or not. The court in his whole charge submitted the issues to the jury on the theory that Yellow Boy might be a different person from Otto Manus; and, we think, unquestionably was correct under the evidence, in doing so. On the other hand, appellant contended that the court should, in submitting the issues, do so on the theory only that Otto Manus and Yellow Boy were the same identical person, and that they were not different persons. The main questions arise on these two theories.
Appellant contended and testified that he was not present at the killing, had nothing to do with it and knew nothing about it at all until several hours later; that at the time of the killing, and for several hours continuously preceding and subsequent to the killing, he was at his home in Waco, drunk and asleep, which was quite a distance from the scene of the killing. In addition, his mother and sisters, other relatives and others also so testified. He also introduced the testimony of many of the relatives of Otto Manus and others that he, Otto Manus, was not present at the killing, but was at his father's home, several miles in the country from Waco, at the time. On the other hand, the State introduced several witnesses, two at least, who testified positively that appellant and Otto Manus were present at the killing, and that appellant at the time handed Otto Manus his pistol, and in effect told Manus to shoot deceased, which he at once did. This, of course, was *Page 417 a question for the jury and the lower court, and not for this court. The jury with ample evidence to support such finding found that appellant was present and participated in the killing as a principal, as stated, and without doubt did not believe the testimony of appellant and his witnesses that he was not present, but elsewhere.
One of appellant's main contentions is that the court erred in not appropriately submitting manslaughter for a finding by the jury, claiming that the evidence pertinently raised that issue. The trial judge refused to submit manslaughter, evidently because in his opinion the evidence did not raise any such issue. We have carefully studied the record and the whole testimony, and in our opinion the trial judge was right. The evidence did not raise manslaughter.
The testimony shows that the person, Otto Manus, or the yellow boy, whichever it was, was in the dance hall, and in some way, not definitely shown, a disturbance arose. The testimony would indicate that it was because of some misconduct on this person's part. One of the inmates of the house is shown to have said of this person: "There's a bad nigger out there (in the dance hall). He is cutting up." Another witness swore that deceased told this person "to get out if you can't act no better than that." And another witness swore deceased said to this person: "If you don't know how to come down here and enjoy Christmas no better than that, you had better get out." This same witness further said that deceased said to him: "If you don't know enough to come down here and enjoy Christmas without raising hell, you can get — you had better get out." The several witnesses in designating this disturbance called it an argument, quarrel, squabble, fuss, racket. Another witness for appellant swore that this person, Manus or the yellow boy, asked deceased not to step on his foot. She replied: "Why, I live here. I will put you out of here." That he made no reply to that. That she further said she never missed a Christmas sticking her knife in a mother ____. That she then went and got a knife, came back into the dance hall and stepped on his foot again. He said: "If you all fool with me, I will burn up this house." And that when he made these remarks, she "rushed" him. That he meant by rushing him that she shoved him out of the dance hall into the hall (entrance hall). Other testimony shows that perhaps some of the women in addition to deceased participated in rushing him. The testimony does not show that the deceased or any of the other women cut him or cut at him or attempted in any way to assault him other than in effect require him to leave the house, which he did, backing out. The witnesses differed as to whether deceased at any time had a knife. Some of them swore she did in the dance hall when she began to rush this person out of the dance hall. Other witnesses swore positively that she had no knife at or about the time she was shot. The evidence discloses that she in no way assaulted him or attempted to assault him after he got out of the house. Her whole purpose, as well as of the other of the women participating, was to get *Page 418 him out of the house because of their claimed misconduct on his part. One witness swore that when they got him out of the dance hall into the main entrance hall, appellant was there and told him: "Come on out. I am with you." That appellant preceded him out of the house. There is no dispute of the testimony, and it was testified by two or three witnesses, that after appellant and Otto Manus, or the yellow boy, whichever it was, got out of the house, appellant said to this other person: "Don't talk so much," and handed him a pistol and told him "to shoot," and that he did shoot twice therewith. The first shot struck one of the witnesses. The other shot struck the deceased, which resulted in her death.
It is doubtful if the testimony raised self-defense. However, the court charged on self-defense in appellant's favor, to which there seems to be no objection.
It would seem to be unnecessary to discuss the law of manslaughter. However, we will say that the statute expressly, and the long line of decisions thereunder, is to the effect that two things at least are necessary to raise manslaughter; that is, adequate cause and passion aroused by that adequate cause to such an extent as to render the slayer incapable of cool reflection (P.C., arts. 1128 et seq.); and it is expressly stated by the statute (art. 1131): "An assault and battery so slight as to show no intention to inflict pain or injury" is not adequate cause. The deceased in no way and at no time caused any bloodshed from Otto Manus, or the yellow boy, and none from appellant. There is no indication that her stepping on the yellow boy's, or Otto Manus's, foot at either time caused him any pain or such pain as the statute indicates would raise manslaughter, but, on the contrary, that that assault and battery, if it could be considered such, was so slight as to show no intention to inflict pain or injury. It was more in the nature of an insult than otherwise, and the statute also prescribes expressly that insulting words or gestures are not adequate cause. Otto Manus's, or the yellow boy's, remarks at the time shown above would indicate that no pain was inflicted, and that that did not arouse his passion to such an extent as to raise manslaughter. Under no phase of the evidence is the issue of manslaughter even in favor of Otto Manus, or the yellow boy, but especially as to appellant himself, raised. It excludes the idea as to appellant. We think it unnecessary to cite the cases under the statute applicable to show that manslaughter was not raised so as to require any charge thereon by the court.
Appellant complained of the court's charge on alibi and of the refusal of the court to give his special charge on the subject The court gave a correct charge on alibi, and one that is universally approved as applicable to appellant himself. Appellant complained of the court's charge, "because it fails to apply the question of alibi to both Otto Manus and Mack Rose." The special charge he requested was to the effect of requiring the jury to believe that both appellant and Otto Manus were present and participated in the offense at the time of the killing, before he could be convicted, and wholly ignored *Page 419 the fact as developed by the evidence that Otto Manus may not have been the person to whom appellant handed his pistol and who did the killing, but an altogether different person, the yellow boy, was that person. In other words, appellant was contending that the court should ignore all testimony tending to show that the person who did the shooting was some other than Otto Manus, whereas the court's charge throughout was properly based on the idea that Otto Manus may not have been the person at all who did the shooting but that an entirely different person, known and called as the yellow boy, did it. Under the circumstances of this case, it would have been entirely misleading to the jury and contrary to the very issues raised by the testimony for the judge to have ignored the testimony showing that the person who did the shooting was some other than Otto Manus and not Otto Manus, and under the circumstances of this case, appellant's special charge should not have been given, and the court's charge on the subject was correct.
The same question is raised, and that only, by appellant's complaint to the whole charge of the court, and especially on the subject of principals. The appellant objected to the court's charge on principals because the court charged, that if the person who killed deceased was Otto Manus, or a different personcalled by the witnesses "Yellow Boy," and if appellant did and said what he is, without contradiction, shown to have done and said at the immediate time of the killing and just before it, — a part of the same transaction, — whether that person was Otto Manus or the yellow boy, that appellant would be a principal. His contention was the court should not have so worded his charge as to include in the alternative the yellow boy, a different person from Otto Manus, but in his complaint of the court's charge and in his special charge on the subject, he wanted to exclude the idea that if any person other than Otto Manus was the person to whom he handed the pistol and who did the shooting, then he should be acquitted. The court's charge and that specially requested by appellant, the refusal of which he complains of, were substantially identical except on this point. Clearly the law is that if appellant, as the testimony shows he did, not only encouraged by words and acts the party who killed deceased to kill her, but that he was present and while he himself did not do the shooting, he urged the party who did to do it, and that person killed deceased at his instigation, he would be a principal whether that person was Otto Manus, or another person, the yellow boy, and the court did not err in this particular.
Of course, manslaughter not being in the case, the court did not err in refusing to submit a suspension of appellant's sentence and give his requested charge on that subject, only in the event he was convicted of manslaughter.
We think under the circumstances of this case, the court was right in excluding testimony as to the general reputation of Otto Manus. The court fully permitted all the testimony as to the general reputation of appellant himself. This was all that was required in this case. *Page 420
The court did not err in overruling appellant's motion for a continuance. It does not show whether it was the second or a third or a fourth application. It does show it was not the first. The claimed absent testimony was clearly cumulative only of other testimony appellant introduced on this trial. The statute (C.C.P., art. 609), in substance, does not authorize a second or subsequent continuance to procure cumulative testimony, and the decisions thereunder so hold. Bosley v. State, 69 Tex. Crim. 100, 153 S.W. Rep., 878; Attaway v. State, 31 Tex. Crim. 475, 20 S.W. Rep., 925; Harvey v. State, 35 Tex. Crim. 545, 34 S.W. Rep., 623; Bonners v. State, 35 S.W. Rep., 650; Goode v. State, 57 Tex.Crim. Rep., 123 S.W. Rep., 597; Petty v. State, 59 Tex.Crim. Rep., 129 S.W. Rep., 615; Bacon v. State, 61 Tex.Crim. Rep., 134 S.W. Rep., 690; Sandoloski v. State, 65 Tex.Crim. Rep., 143 S.W. Rep., 151; Maxey v. State, 66 Tex.Crim. Rep., 145 S.W. Rep., 952; Pace v. State, 69 Tex.Crim. Rep., 153 S.W. Rep., 132; Rogers v. State, 71 Tex.Crim. Rep., 159 S.W. Rep., 40; Whitfill v. State, 75 Tex.Crim. Rep., 169 S.W. Rep., 681.
Appellant complains of the action of the court in the organization of the jury. His bill, together with the qualification of the court, shows this state of fact: This case was first set for trial for November 15th and a special venire of forty jurors issued and served requiring them to appear at that time. It seems that they then appeared. The case, however, was reset for December 13th, at which time it was tried. When the special veniremen appeared on November 15th, the court excused some of them and did not require them to attend the resetting of the case. It is not shown how many. The record shows no objection to this action of the court at the time or at any other time. When the case was called for trial at the time reset, ten only of the special veniremen were present. When the case was called, in the morning, and only ten of the jurors appeared, appellant objected to then going to trial and making up a jury or even passing on any of the ten present, and asked, and the court granted, an attachment for the absent veniremen and set the case over for 2 o'clock of that day. It seems that the previous excusing of the jurors who were excused on November 15th was by the regular judge of the court. When it came on for trial on December 13th, the regular judge was absent, and Hon. Nat Harris was elected and presided as special judge on this trial. In the meantime, after the trial judge set the case over for 2 o'clock, he learned that said jurors had been excused by the regular judge. When he again called the case for trial at 2 o'clock, appellant demanded that the trial should be postponed until the absent special veniremen should be brought in under the attachment, which was issued in the morning, and also objected to even passing on the ten veniremen who were present. When the case was postponed in the morning, the judge ordered forty talesmen to be summoned to appear at 2 o'clock. The court overruled appellant's objections and required him to proceed with the organization of the jury. The ten regular veniremen were thereupon, in accordance *Page 421 with the statute, passed upon, and only four of the ten were selected. When this was completed, appellant again demanded that the case should be put off until the attachment for the absent regular veniremen was returned and they were brought in. The court refused this and ordered him to proceed with the organization of the jury from the talesmen who had been summoned, and this was done, and the jury was completed, and the trial had. Appellant did not exhaust his challenges. No intimation is given by the record that any juror at all objectionable to him was selected. In other words, it shows that he got a fair and impartial jury, to none of whom any objection was made. In our opinion, no reversible error was committed by the court on this point.
There are many decisions of this court holding that our statute on the subject of the organization of the jury under a special venire is directory and not mandatory. Murray v. State, 21 Texas Crim. App., 466; Jackson v. State, 30 Texas Crim. App., 664; Roberts v. State, 30 Texas Crim. App., 291; and many cases and authorities cited in these cases. It is unnecessary to collate the large number of cases of this court to the same effect.
Judge White, in section 752, subdivision 5, says: "Where an attachment has issued for an absent juror it is not error to refuse to delay the trial until the return of the attachment, nor in proceeding forthwith to fill up the jury from talesmen. Deon v. State, 37 Tex.Crim. Rep.; Mitchell v. State,36 Tex. Crim. 278; Sinclair v. State, 35 Tex.Crim. Rep.; Jones v. State, 31 Tex.Crim. Rep.; Stephens v. State,31 Tex. Crim. 365; Suit v. State, 30 Texas Crim. App., 319; Jackson v. State, 30 Texas Crim. App., 664; Hudson v. State, 28 Texas Crim. App., 323; Habel v. State, 28 Texas Crim. App., 588; Thuston v. State, 18 Texas Crim. App., 26; Sawyer v. State,39 Tex. Crim. 557." In Jones v. State, supra, this court, through Judge Davidson, said: "Appellant was convicted of murder in the first degree, and his punishment assessed at a life term in the penitentiary. When the jury was being empaneled, the defendant, as well as the State, asked for and obtained an attachment issued for the absent venireman, McAtee. The defendant then asked the court to suspend the further empaneling the jury until the sheriff could bring in the juror, or show cause why the attachment could not be executed. This the court refused, and ordered that the selection of jurors be proceeded with from the summoned talesmen. Defendant excepted, and duly reserved his bill of exceptions. The ruling of the court was correct. Hudson v. State, 28 Texas Crim. App., 323; Suit v. State, 30 Texas Crim. App., 319." It is needless to cite and quote the many other cases to the same effect. The statute itself (art. 696, C.C.P.) expressly provides, in effect, that no cause shall be unreasonably delayed on account of the absence of a juror who has been summoned on the regular special venire. And it has been repeatedly held that the question of what is a reasonable delay to procure absent veniremen is left largely to the discretion of the trial judge. We think clearly *Page 422 under the statute and authorities and facts in this case that the time the trial judge delayed waiting for the return of the attachment for the absent jurors was reasonable.
No other question is presented for review.
The judgment will be affirmed.
Affirmed.