Appellant was tried and convicted of murder in the second degree, and his punishment assessed at ten years in the penitentiary, and he prosecutes this appeal. The appellant assigns a number of errors, but we will only consider such as we deem important. The court overruled the motion for a continuance presented by appellant, the ground for which was the absence of the following witnesses: Mrs. Paulina Harvey, Coon Williams, W.S. Archibald, Hampden, Swindle and Knull. As to the witnesses, Mrs. Harvey, Coon Williams and W.S. Archibald, the diligence was the same. The application recites that they were present at the former terms of the court, but nowhere does the application state that either of the said witnesses was present at the term of the trial. The indictment in this case was presented at the June term, 1893, and this trial did not take place until the June term, 1895. The June term in 1895 began on the second Monday of June, and this trial was had on the 15th day of July, 1895. The application should have shown that said witnesses were present at the term of the court on the day the criminal docket was taken up, or at least on the day when the case against the appellant was set down for trial. If they were not present at said time, it was the duty of the appellant then to have sued out an attachment for said witnesses. As to the witness, Mrs. Harvey, however, it is stated that she was sick at the time of the trial, otherwise she would have been present. Concede that the diligence as to her was sufficient, her evidence in regard to the condition of appellant's clothes on the day after the homicide, especially the knees of *Page 559 his pants, was rendered immaterial, in view of the fact that the State introduced no evidence indicating that appellant had crawled on his knees in the lane on the day of the homicide to a place of concealment; nor did the State make any issue as to the purpose for which the defendant may have carried his gun on the day of the homicide. Two witnesses for the appellant testify that his purpose in carrying the gun on said day was to kill a squirrel or bird for the sick wife of appellant. This was corroborated by the advice given in that regard by the doctor. The State introduced no countervailing testimony. Besides, this was the second application for continuance, and the testimony of Mrs. Harvey would have been only cumulative. As to the testimony of Coon Williams, who, it was alleged in the application, would testify that he saw the lane from which appellant is alleged to have committed the homicide about three days thereafter, and that he would testify as to the bushes being cut down. This same testimony was had from several witnesses, and his evidence on this subject would have been only cumulative. The same observations hold good with regard to the testimony of Archibald concerning the lane. Besides, as to him, it is shown in the application that he was temporarily absent in the State of Missouri, and in the judge's explanation to the bill of exception it is shown that be had permanently removed to the State of Missouri. The application shows that appellant had only heard of his removal on the day before the trial. It is not shown, however, that he used any diligence to ascertain the fact of his removal. He should, at least, have shown some diligence during the term of the court to ascertain the whereabouts of this witness; and, if he had removed, some effort should have been made to procure his deposition. His testimony, however, at the former trial of the case, was accessible, but no effort was made by appellant to use the same. As to the other three witnesses, Hampden, Swindle and Knull, it is shown that they had removed permanently out of the State, and the appellant used their testimony delivered at a former trial of the case. The court did not err in overruling the application for a continuance, nor in refusing a new trial on that account.
Appellant proposed to show on the trial of the case by the witness, Scott, that he went with Knull to the place of the homicide, and proposed to show that when Knull came for him, and wanted to go around by the road, said witness, Scott, insisted on going straight through the field, because that was the direction in which he had heard the quarrel, and the firing of the gun. This, it seems to us, involves the admission of hearsay testimony; and we do not believe it was competent for the appellant to prove by the witness, Scott, that he told Knull at that time that he had heard shots fired in the particular direction in which the body was afterwards found, and that he insisted on going in that direction, because he had heard the shots fired in that direction. This witness, Scott, testified to the fact that he had heard shots from where he was working in the field in that particular direction at the time the deceased was alleged to have been killed. This was proof of the fact, *Page 560 and was all that appellant was entitled to, except the further fact that they went to the scene of the homicide in that same direction, and this was admitted. What Scott said at the time was properly excluded. Appellant also insisted on proving by the witness, John Cherry, that the appellant, at the time of his arrest, did not make any effort to run away. The testimony on the part of the State fails to show flight on the part of the appellant after the alleged homicide. No effort was made in that direction. Appellant himself showed a voluntary surrender. This was affirmative, and which he was entitled to show, and it negatives the contrary. It appears that on the cross-examination of the appellant's witness, Mattie Chester, she testified that, according to her recollection, it was about the 10th of May, 1892, the killing occurred. Appellant insists that he had a right to ask the witness if the killing occurred on the 18th day of May, 1893; that she was mistaken about her location of the time as May 10, 1892. While it was permissible for the appellant, on re-examination of the said witness, by proper questions to the witness to show that she was mistaken as to the date fixed by her in her cross-examination, yet we think that the question as it is presented in the record was clearly leading, as it informed the witness that the killing did take place on the 18th of May, 1893. Unless, for some reason further than is apparent in the record, authorizing appellant to lead this witness, we think the action of the court was correct.
The State was permitted, over the objection of the appellant, to prove by the witness, J.J. Terrell, a conversation between William Gann and appellant. The objection urged by appellant is, that said conversation involved hearsay evidence, in that William Gann asked appellant a question. Of course, declarations of appellant in that connection were admissible, and his statement made would hardly be intelligible, without the question put to him by said Gann. The question was by Gann to the appellant at the dead body of the deceased. The question asked the witness was: "Did any one say anything to the defendant at the body of the deceased, and, if so, what?" The answer was: "Yes; Mr. Gann said, 'Lon, you ought to have dragged him away from his hoe, and the end of his row.' " The answer of the defendant was: "That, he did not shoot him there, but shot him up at the lane, and he ran back there, and fell on his hoe." All of this testimony is to be regarded as original, and not hearsay evidence. The witnesses, Gann or Terrell, or any other person who heard it, could testify in regard to it. We have examined the charge of the court and the special charges asked and refused. In regard to the contention of the appellant, that the court erred in defining express malice, the charge states distinctly that this definition was given in order that a proper charge on implied malice might be presented. This was the proper practice. Nor did the court err in failing to instruct the jury, "if they found the defendant, as charged, committed the offense upon express malice, to acquit him of murder of the second degree, as also of manslaughter;" the position of the appellant being that, inasmuch as he had been before tried and acquitted of murder of the first *Page 561 degree, if the evidence showed the killing was upon express malice, he should be acquitted altogether. The case of Fuller v. state, 30 Tex.Crim. App., 559, decides this proposition adversely to the appellant; and it is followed by a majority of the court in the Conde case, ante p. 98.
As stated before, we have examined the special charges asked, and in every particular, where such charges were required by the evidence, the propositions were covered, and properly so, in the charge of the court, so that these special charges were unnecessary. The appellant also assigns as error that the jury on their retirement were permitted by the court to take out with them the verdict of guilty and imprisonment for ten years, rendered at a former term on the trial of this defendant in this case. There is no separate bill to the action of the court in this regard, but the whole question was presented in a motion for a new trial, and on the overruling of the same a bill was reserved to the action of the court. The bill shows that the court's attention was called to the matter of a former verdict being on the indictment before the retirement of the jury, that he informed counsel that the indictment would not be sent out. The clerk, however, it appears, attempted to obliterate said verdict by spreading ink over the face of it, and so presented it to the judge. The judge certifies that it did not appear to him to be legible, and in such condition he sent it out with the papers to the jury, but that he did not inform appellant's counsel of his action in the premises, and the bill shows that they and appellant were ignorant of the matter until the return of the verdict by the jury. Appellant introduced several witnesses who testified that they could make out the verdict. The State also introduced several witnesses on the subject, who testified that they could not read the verdict in its then condition. The State also introduced Marchman, one of the jurors who tried the case, who swears that he could not make out the verdict, and that the matter was not called to his attention while they were considering of their verdict; and while in the jury room, in his presence and hearing, this matter was not alluded to or discussed. The original indictment, with the verdict thereon, is also before this court, having been sent up for inspection. Several cases have come before this court involving this question, where the verdict was plain and legible, but no exception was taken to the action of the court at the time in allowing the indictment with the verdict to be taken out by the jury, and this court. refused to reverse the cases on such grounds. See, Cook v. State, 4 Tex.Crim. App., 265; Anschicks v. State, 6 Tex.Crim. App., 524. In the latter case the court says: "It was the business of counsel to see to it that the jury were permitted to carry with them such papers as were proper to be used in their retirement; and, if the attention of the court had been called to the subject, and it had refused to give the proper directions, it should have been presented by bill of exception." In this case, however, the bill shows that by no laches on the part of appellant or his counsel, the indictment, with the verdict thereon (in the shape as before stated), was permitted *Page 562 to go to the jury, without appellant's knowledge, so that no opportunity was presented to save the bill when the verdict was carried out, and appellant embraced the earliest opportunity within his power to present the matter to the court, to-wit: on motion for a new trial. It has been repeatedly held, however, that if acts or conduct of this character were essentially injurious to appellant's rights, such acts or conduct would constitute fundamental error, and in such case no exception was necessary to be reserved. Evidently, in the cases above alluded to, notwithstanding legible verdicts were taken out by the jury, such conduct was not regarded as fundamental error. In the case at bar it appears that an effort was made to show that the verdict was legible. There was testimony pro and con on this subject. The State, however, introduced one of the jurors who tried the case, and, occupying the standpoint he did, his evidence must be considered more persuasive on the question than that of any other witness who testified about the matter; and he says that he did not read the verdict, and that in his presence, while the jury were considering their verdict, he heard and saw no one else read it, and nothing was said by the jury in his presence in regard to said verdict. We have examined for ourselves the original verdict sent up to this court for inspection, and while it is possible for a person with a practiced eye and skill in such matters, with the light falling on the same in a particular direction, to read and decipher it, yet, even at this time, it is with some difficulty. The judge who tried the case certifies that, while the ink was yet fresh over the verdict, it was then not distinguishable to him; so, in our opinion, the weight of the testimony in this regard is to the effect that the jury who tried the case did not notice or read or attempt to read the obliterated verdict; and, if they had done so, in the absence of some showing of injury to appellant, we could not consider this as fundamental error, or such error as ought to have authorized the court below to grant a new trial when the matter was first presented to it on the motion for a new trial. Appellant also reserved a bill of exceptions to the remarks made by C.H. Yoakum, private prosecutor for the State, in his closing argument to the jury. The language used was as follows: "That he requested the jury to find the defendant guilty, and, if they did so, it would be approved by the people, and affirmed by the Court of Appeals of the State of Texas." The court shows in his explanation that no objection was made at the time this language was used, nor until after the jury returned their verdict, and had been discharged; and the objections were made for the first time in the appellant's motion for a new trial. If this language was considered objectionable and prejudicial to the rights of the appellant, it was his duty to reserve a bill of exception at the time, and ask a charge of the court on the subject, and on his failure to pursue this course he cannot complain. See, Henry v. State (Tex.Crim. App.), 30 S.W. Rep., 802; Kennedy v. State, 19 Tex.Crim. App., 618; Young v. State, Id., 536; Comer v. State (Tex.Crim. App.), 20 S.W. Rep., 547; Wilson v. State, 32 Tex. Crim. 22; Norris v. State, 32 Tex.Crim. Rep.; Rahm v. *Page 563 State, 30 Tex.Crim. App., 310; Maxwell v. State, 31 Tex. Crim. 119. The judgment of the lower court is affirmed.
Affirmed.