This is a companion case to that of J. T. Melton, just decided. In this case, however, appellant was only indicted as an accomplice of Melton’s in the murder of Thomas Braden; that is, he was indicted as one who, though not present at the commission of the offense, before the act was done advised, commanded and encouraged the said J. T. Melton to commit it. (Penal Code, art. 79.)
When the case against the principal, Melton, in a separate indictment, was called for trial, the defendant made the affidavit prescribed by article 669a, added to the Code of Procedure by act of the Twentieth Legislature, page 33, approved March 21, 1887, to the effect that when two or more defendants are prosecuted for an offense growing out of the same transaction, by separate indictments, either defendant may file his affidavit in writing that one or more parties are so indicted whose evidence is material to his defense, etc., and praying that they be first tried, etc., and he asked that this appellant be first tried in this case. This prayer was granted, appellant was tried, and his trial resulted in his conviction of murder in the second degree, with punishment affixed at five years in the penitentiary. On this appeal he submits several propositions for the reversal of the judgment.
We have already shown, in the Melton case, that the homicide' was not manslaughter under the facts developed, and that the issue of self defense was not raised. In this case the facts are almost identical, except that they go further in this case, and positively eliminate self defense by showing in the testimony of the'witness, Harris, a statement made by Melton just after the shooting, to the effect that he, Melton, did the shooting because the deceased had slandered his daughters. There was no claim that Melton acted in self defense, pretended by him at that time.
In so far as defendant’s application for continuance is concerned, if it be admitted that due diligence and the probable truth of the testimony are shown, still the facts sought to be proven by the witnesses Hill and Culpepper, as to defamatory language used by deceased about Melton’s daughters, ceased to. be material when the other evidence showed that Melton did not kill deceased upon the first meeting after having heard of the insults. Moreover, it is abundantly proven by other testimony adduced that deceased did use most defamatory language about Melton’s daughters. In so far as these witnesses were concerned, no injury appears, from, the refusal of the contin*69uance nor the overruling of the motion for new trial. As to the proposed testimony of Mrs. Parker, about this defendant’s borrowing from her the gun of her husband to go wolf hunting, this testimony is also immaterial in the light of an abundance of other testimony, besides defendant’s having and borrowing the gun; which establishes the charge against him, viz., that he advised, commanded and encóuraged Melton in the commission of the crime. There was no error in overruling the motion for new trial, in so far as it involved the application for continuance.
Opinion delivered October 22, 1887.Objection was made to the introduction, by the State, of the testimony of Charles Anderson, taken and reduced to writing on the examining trial, because, it is insisted, that no sufficient predicate was laid as to his being a non-resident and beyond the jurisdiction of the State. To our minds the evidence is reasonably certain, if not wholly conclusive, both as to his identity and that said witness had removed from the State of Texas and become a citizen of Arkansas. (Conner v. The State, 23 Texas Ct. App., 378, and authorities cited.)
Though attacked in several particulars, we have been unable to see any error of the slightest moment in the charge of the court. It presents the law fully, fairly and ably. Ho sufficient reason is made manifest why the judgment of the lower court in this case should be disturbed, and it is therefore affirmed.
Affirmed.