Appellant in this case was tried under an indictment charging him with murder in the first degree, was convicted of murder in the second degree, and his punishment assessed at twenty years' confinement in the penitentiary. From the judgment and sentence of the lower court he prosecutes this appeal.
The first error complained of by appellant is that the court erred in refusing to quash the indictment in this case. He also brings up the same question on motion in arrest of judgment. The contention of appellant is that the indictment is defective, because it fails to show that it was presented in the proper court, and because it does not appear from said indictment that it was presented in the District Court of the county where the grand jury was in session, and that said indictment does not appear to be the act of the grand jury of the proper county. The indictment shows on its face, according to the authorities, that it was presented by the grand jury of the proper county, and in the proper county. Willson's Cr. Stats., § 1951 and authorities; Vanvickle v. State, 22 Tex.Crim. App., 625. The contention that the indictment should have shown on its face in which court of the two District Courts in Tarrant County it was presented is not well taken. The minutes of the court show this fact.
Appellant filed a motion for the continuance of this cause on account of the absence of the witnesses, E.L. Campbell, Charles Nolan and one Hargraves; but it appears that Hargraves subsequently came into court and testified, and so we have only to consider the other two witnesses. As to these, the question presented in the motion for a continuance is also raised in the motion for a new trial. It appears from the record that a subpœna was issued for these witnesses on the 22d of January, 1895, and return was made "Served" as to each of them on the 2d of February following. The case was set for trial on the 4th of February, and on the morning of the 4th was accordingly called for trial, and both these witnesses were absent. Writs of attachment were then issued for them, and the case passed until about 2 o'clock, when a motion for continuance was presented to court. On an inspection of the record we are of the opinion that the testimony of each of said witnesses, as set out in the motion for a continuance, was material to the appellant. The motion was, however, overruled, and on the motion for a new trial the overruling of the motion for a continuauce as to these witnesses was involved, and the State filed a controverting or contesting affidavit. Said affidavit, while proposing to controvert the question of dilligence, also contests the materiality of the testimony of the absent witnesses, and that said *Page 336 motion was made for delay, and alleges as to said witness, Campbell, that be was absent by the procurement and consent of appellant, and as to the witness, Nolan, that he was a fictitious person. In our opinion the State had the right to do this. Code Crim. Proc., Arts. 560, 565, 781; Norris v. State, 32 Tex.Crim. Rep.; Cockerell v. State, 32 Tex. Crim. 585; Walker v. State, 13 Tex.Crim. App., 619. The court trying the case admitted a great deal of testimony, both affidavits and oral evidence, taking up about 100 pages of the record in this case. Exception was taken to this testimony. Much of it was immaterial. However, as the matters were addressed to the court, and as all the evidence is now before us, we can eliminate such of it as appeared to be immaterial, and it seems the court below also pursued this course. Without reiterating all the testimony from the record which we think has a legitimate bearing upon the issues in this case as to said two witnesses, and after a careful examination thereof, we have reached the conclusion that the issue was fairly presented to the court below, trying the motion, whether or not the witness Campbell was absent by the procurement and with the consent of appellant. There was evidence pro and con on this issue, and the court below seems to have regarded the absence of said witness with the connivance of the appellant as proved. As to the witness, Nolan, the court heard testimony pro and con as to whether or not he was a real or fictitious person. The State showed by a number of witnesses in a negative way that they did not know of the existence of such a person as Nolan. The officer who had the attachment for said witness on the 4th of February, also shows, by his affidavit, that he applied to appellant's counsel, and to appellant himself, to know where said witness could be found, and they stated to the officer that they had never seen and did not know such a person, and with all the people in Fort Worth, and the facilities afforded for finding such a person as Nolan, no one could be found who had ever seen said witness except the deputy sheriff, Trigg, who served the subpœna on him, and the record throws such suspicion on this man, Trigg, in connection with this case as to very much weaken our respect for his testimony. If such a man existed, some one besides Trigg in all the city of Fort Worth should have known him, and if such an important witness existed it is exceedingly strange that he had not been talked to prior to the trial by as diligent and able counsel as managed the defense in this case. Not even the witness, Thomas, who was employed to talk with the witnesses, knew of his existence. So, to our minds, it is altogether improbable that such a person existed or was at Fort Worth at the time this homicide was committed. As to the witness, Campbell, moreover, it appears that on the morning of the 4th, when the attachment was issued and placed in the hands of the deputy sheriff, he inquired of appellant's counsel as to Campbell. They informed said officer, if he is to be believed, that he need not mind about said witness, that if they wanted him they would let him know later, and this they never did. Said witness was seen by one person as late as 1 o'clock on said Monday, *Page 337 and if the officer had been informed by counsel that they still wanted said witness, it is probable that he might have been procured. As to this witness, it also appears that he was used by the State on the habeas corpus trial of this case, and that he was upbraided by appellant's counsel for making his testimony stronger than he had previously stated it to them. His testimony was in the record. There is some suggestion in the record that this witness was out of the State, and the State offered to permit his testimony to be read. Appellant declined to avail himself of this opportunity. From the evidence that the record affords in this case with regard to these two witnesses, we are of the opinion that the court did not err in setting on foot this investigation to ascertain whether or not the appellant had used diligence in procuring these witnesses, and even in making it as comprehensive as he did, for it is peculiarly within the province of the District Judge, in matters of this sort, to see that the course of justice flows in its appointed channel, uncontaminated by corruption and unobstructed by fraud or villainy. In our opinion, it was competent to show that the witness, Nolan, was a fictitious person, for in such event by no amount of diligence could it ever be possible to procure his attendance in court; and it was also competent to show, as to the witness, Campbell, that he had been spirited away by the appellant in this case, for in such contingency it would negative his affidavit, made for the continuance, that said witness was not absent by his procurement or with his consent. The motion for a new trial on this ground was properly overruled, and the court did not err in refusing to grant a motion for a new trial.
The only exception taken to the admission of evidence is contained in appellant's third bill of exceptions. It appears that Annie Wilde, a witness for the State, on direct examination, testified that she met Pat Foley about 11 o'clock on the day of the shooting. He was not doing anything; only standing around. He was intoxicated, and that was the last time she saw him until in the evening. About 1 or 2 o'clock she found him asleep in the dining room girls' room, on the bed. Said witness was then asked by the State to tell the jury what she did about it, if anything, and she answered, "I went down and told Mrs. Sargent he was up there, and Mrs. Sargent remarked, "Very well. Let him be; he won't hurt anything." To this latter testimony the appellant objected. If it be conceded that this testimony was not admissible, yet we fail to discover in what respect it was injurious to the appellant. This was some time before the homicide, and merely showed the condition of appellant at that time; and what Mrs. Sargent said, "to let him alone," could serve no purpose, in connection with the testimony in this case, to impair any right of appellant.
The court in this case gave a lengthy charge covering murder in the first degree, murder in the second degree, manslaughter and self-defense. This charge was furnished appellant's counsel an hour or more before it was delivered to the jury. They asked no charges, but merely contented themselves with objecting to the court's charge. A number of errors *Page 338 are assigned with reference to the court's charge, and said charges criticised by appellant's counsel in an elaborate bill of exceptions. We have examined said bill in connection with the charge given, and fail to discover the errors complained of. Appellant was acquitted of murder in the first degree, and it is not necessary to consider the charge in that regard at all. We have examined the charge on murder in the second degree, and the court's definition of implied malice, and find no error in connection therewith. Appellant complains that the charge on manslaughter was not a charge on the evidence presenting that phase of the case, but was an abstract charge. It is true, in this connection, the court did not state what fact or facts in evidence would constitute adequate cause to excite passion sufficient to render the mind of appellant incapable of cool reflection, but he told the jury in a general way that adequate cause "is such cause as would commonly produce a degree of anger, rage, sudden resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. Any condition of circumstances which is capable of creating anger, rage, sudden resentment, or terror, in a person of ordinary temper, and which actually does produce the same in the person doing the killing, is an adequate cause." So that the charge left the jury absolutely untrammeled, to review all the evidence in the case in connection with the killing, to determine the adequate cause, and to ascertain whether or not appellant's mind was influenced thereby. In this we see no error. If another course had been pursued, and particular facts had been singled out, there might have been some complaint that all of the facts which would go to make up adequate cause were not cited in the charge. The charge on self-defense was comprehensive, and covered the entire field of the evidence. The court charged both on an assault made on appellant in a manner calculated to cause him to apprehend danger to his life or serious bodily injury, and also to the effect that, if the jury believed that "the attack made upon the defendant was not such as to produce a reasonable apprehension of death nor of serious bodily injury in defendant's mind, but was an attack upon his person of a milder character, or was an unlawful intrusion upon the defendant's premises after being duly notified that he could no longer remain a guest at the hotel, in such case the defendant would have the right of self-defense," but before exercising it he would have to resort to all other means except retreating before he would be authorized to slay the deceased. There was a phase of the evidence which presented an assault of this character, and certainly the appellant would not be permitted to complain that the charge of the court authorized him to slay the deceased if he made an unlawful intrusion into his hotel, and in such case he would be authorized to kill the deceased after he had resorted to all other reasonable means to get rid of him, except retreating. This charge was certainly as liberal as the appellant could have asked. Nor did the court err in telling the jury that the appellant's right of self-defense would continue as long as he was in actual *Page 339 or apparent danger of an attack by the deceased, although deceased was killed while retreating, but that, if he was in no real or apparent danger after deceased had left the scene of the difficulty and started to retreat, then his right of self-defense ceased. Nor, in this case, was it improper to tell the jury, in effect, that "in determining whether the defendant acted in his necessary self-defense, or in what reasonably appeared to him to be his necessary self-defense, it is the duty of the jury to look at the transaction from what the jury believe from the evidence was the standpoint of the defendant at the time, and consider the same in the light of the facts and circumstances as the jury believed they appeared to the defendant at the time, and not from any other standpoint; but it is for the jury to determine from the evidence what were the appearances to the defendant, and what the standpoint of the defendant was, and in what light he in fact did view the facts and circumstances at the time." This charge, we believe, was fair, and, in view of the evidence in this case, was a pertinent charge. The appellant insists that the court should have charged the jury, in substance, that if the deceased was making an assault on the appellant with a knife, a deadly weapon, then the law would presume that he fully intended to kill the appellant, and that in such event they would give the appellant the benefit of such presumption. As we have said before, the charge of the court on the subject of self-defense presented all the issues of the case fairly, and there was nothing in the evidence to call for such a charge. It appears from the record in this case that before the court read his charge to the jury, he admonished them to pay particular and careful attention to each word and sentence of the charge, so that they might be advised as to the law of the case. The appellant saved a bill of exceptions to this action of the judge, and insists that, as a part of the charge, the same should have been in writing, and that it was no part of the duty of the judge to so admonish the jury. We do not regard the admonition as any part of the charge of the court. It was the proper admonition, and no word or sentence thereof was calculated to bias the mind of the jury one way or another in relation to the case they were then trying, but merely a suggestion on the part of the court to pay particular and careful attention to his charge. In this there was no error. We have carefully examined the evidence in this case, and believe that the same authorized the finding by the jury that the appellant was guilty of murder in the second degree, and assessing the punishment at twenty years in the penitentiary. The judgment and sentence of the lower court are affirmed.
Affirmed.