Conviction for murder; punishment, five years in the penitentiary.
This is the second appeal of this case. See Barfield v. State, 113 Texas Crim. Rep., 276, 21 S. W. (2d) 673.
The first point complained of in appellant’s brief is the overruling of his application for a continuance. Since the case was reversed upon the former appeal for the refusal of a continuance, it must be manifest that the application made at the instant term of the court below was not a first application, and it must be treated as a subsequent application. As far as we can judge practically all the testimony expected from appellant’s sister, one of the absent witnesses, was given by his wife. The only difference appears to be the claim that the absent witness would have sworn that when she reached deceased shortly after the shooting he said in her presence: “Oh Lord, forgive me and forgive Cader, too, for I know he did not intend to do it.” Upon the former trial of this case this witness was present and gave this testimony before the jury, as the records of this office reveal, and he was then awarded a term of thirty-five years in the penitentiary. Upon this trial he was given a term of five years. We are not led to attach the importance or materiality to this testimony of the absent witness which is ascribed to same by appellant’s counsel. Nor do we think the trial court exceded the discretion confided in him when evidently upon consideration of the motion for new trial, he concluded that had the absent testimony been before the jury a different result would likely not. have followed. Wiley v. State, 117 Texas Crim. Rep., 459, 36 S. W. (2d) 495.
As making evident the correctness of our conclusion that the trial court did not abuse his discretion in this' matter, attention is called to the immediate facts surrounding the killing, which show that following a fight or several fights between deceased and appellant the latter went away, got a pistol and at once returned to the scene, went upstairs, passed his wife, and went into a room in which he says deceased was alone, the latter lying on a cot. Giving appellant’s own version of what then occurred, he said deceased got up, and that he shot to turn deceased back,. —shot over his head; that he dropped the pistol down and shot again, and then shot a third time. Deceased said: “Don’t shoot me any more.” Appellant said that he shot because he thought deceased was fixing to finish him. He did not claim to have seen deceased with a pistol, nor did the latter make any motion as if to draw one, nor is his description of the situation such as to make it apparent that deceased was within reach of him if he intended to use any other weapon, or that they were nearer than across the room from each other. The mother of deceased testified for the state that she was in the room when appellant shot three times, and that deceased was lying on a cot, and at no time got up, except that he rolled off the cot when appellant shot the third timé, and. *397said “Oh mamma, he has killed me”. Mrs. Jones swore for the state that when appellant came back with the pistol she saw same and tried to keep him from coming in. She said appellant’s wife also tried to prevent him from coming in. They got hold of appellant and he shoved them away. They swung on to him trying to hold him. Witness said she held on to him until he got half way across the room. According to her statement, appellant told them to get out of his way, he was going to kill him. She said the mother of deceased was right by appellant while the latter was doing the shooting. Another witness swore that when appellant came back with the pistol she and a young man were trying to push a car.- Appellant said something about their trying to take deceased away in that car. Appellant had a pistol in his hand and came and snapped on the light and pointed his pistol over the door of the car. When he discovered deceased was not in the car, he went on upstairs, and witness holloed that “Cader was coming with a gun.” When he had time to get upstairs she heard the shots. We fail to see how the testimony of the other absent witness, Mr. White, relating solely to the burglary of his store some ten days prior to this homicide, could be of such materiality as to require the granting of a new trial. We are of opinion the court did not err in refusing the application for continuance.
We find nothing in Greever v. State, 114 Texas Crim. Rep., 99, 24 S. W. (2d) 1093, or Williams v. State, 74 Texas Crim. Rep., 56, 166 S. W., 1170, which would support the objection to the testimony of the mother of deceased, who said that just before appellant came into the room where deceased was and began shooting she heard Vivian Jones-downstairs hollo, “Here comes Cader with a gun.” This was part of the res gestae of the transaction. Cader was coming with a gun. At that time he was somewhere between the girl who called out and the room upstairs where the shooting took place almost immediately afterward.
We find nothing in appellant’s testimony supporting the theory of negligent homicide. The court gave a special charge, in effect, that if appellant did not shoot at deceased, but fired his pistol to deter deceased from attacking him, and that if the bullet from said pistol struck some object and was deflected and struck deceased without intent on appellant’s part to shoot deceased, and that the killing resulted from such shooting,, they should acquit.
As part of his charge on the law of threats, the court told the jury that if deceased did no act and made no demonstration, or used no language coupled with acts or demonstrations reasonably indicating or’ inducing in the mind of appellant a belief, viewed from his standpoint, that a threatened attack had been commenced, then appellant could not justify on the ground of threats. We fail to perceive any error in this part of the charge.
*398All the other matters brought forward in the brief and' complained of in the record, have been examined and in none of same do we believe there appears any error for which the case should be reversed.
The judgment will be affirmed.
Affirmed.