Appellant was convicted of murder in the second degree, and his punishment assessed at twenty-five years in the penitentiary.
1. The application for continuance was properly overruled, as was the motion for new trial based upon the refusal of the continuance. The evidence adduced upon the trial shows the absent witness was not at the point designated in said application, and had he testified as set forth therein, his testimony would not have been probably true. Every eye-witness to the transaction shows that the deceased was not advancing upon defendant, and that he had no knife in his hand at the time he was shot. The parties reaching the body immediately after the shooting found deceased's knife in his pocket, and closed. Inasmuch as he was shot through the heart or near it, and twice through the brain, it was impossible that he could have closed the knife and returned it to his pocket after being shot.
2. Defendant offered to prove by Goodwin that in 1887 deceased remarked, that he believed he could have carnal intercourse with Jennie Bishop, and that upon the first opportunity he intended to try and have such intercourse. This was some years before she married the defendant; and besides, the imputed statement was never communicated to defendant, and was too remote to have any bearing on the case. The court did not err in refusing this evidence. Ex Parte Jones, 31 Tex. Crim. 422 [31 Tex. Crim. 422].
3. He further offered to prove by his mother the statement of himself made to her, to the effect that he killed deceased to save his own life. Defendant had ridden seven and one-half miles from the scene of the homicide before making the statement. He was pursued by the sheriff and posse; he avoided them by deflecting from the road and hiding till they passed; and the court states the evidence fails to show how long thereafter it was before he saw his mother and made the statement sought to be introduced. The court was clearly right in rejecting the proffered evidence. It was not brought within the rule of res gestæ, and there was enough evidence of deliberation on his part.
4. Exception was reserved to the charge, because it failed to charge the reasonable doubt" between manslaughter and self-defense. The court gave this charge as between murder in the first and second degrees, also between murder in the second degree and manslaughter, and further instructed if there was a reasonable doubt of defendant's guilt, he should be acquitted. This was sufficient.
Even had the court failed to instruct the jury to apply the reasonable doubt between the degrees of culpable homicide charged upon, such omission *Page 593 would not have been error where the court applies such doubt to the whole case. Hall v. The State, 28 Texas Cr. App., 146; McCall v. The State, 14 Texas Cr. App., 353; Powell v. The State, 28 Texas Cr. App., 393; Ashlock v. The State, 16 Texas Cr. App., 13; Bennengfield v. The Commonwealth, 22 S.W. Rep., 1020. After informing the jury that they were the exclusive judges of the credibility of the witnesses and the weight to be given to the testimony, the court further said: "You should reconcile all conflicts in the testimony if you can; but if you can not, you must decide which of the testimony is entitled to the greater credibility and weight; and in so determining you may consider the intelligence, interest, apparent bias or prejudice, if any, of witnesses, as well as their manner of testifying."
This charge was objected to, because "it was directly calling the attention of the jury to the testimony of defendant and his wife, who were the parties most interested among the witnesses who testified." The very charge here complained of 'was held not to be erroneous in Adams' case, 20 Southwestern Reporter, 548; Brown v. The State, 2 Texas Criminal Appeals, 115.
A ground of the motion for new trial was based upon the fact that one of the jury, Hagar, had expressed an opinion as to the guilt of defendant. This allegation was supported by the affidavit of Mrs. Dunlap. In a subsequent affidavit she stated that said juror "did not express any opinion as to the guilt of defendant;" and the juror himself also denied the expression of such opinion, and further stated that he had formed no opinion in reference to the matter, and knew nothing of the facts prior to the trial. Upon a trial of the issue the court decided adversely to the motion, and we think correctly. Shaw v. The State, ante, 155.
A contention is made that the verdict is too vague and uncertain to form the basis of the judgment rendered, in that the word "twenty" is so written that the letter "w" appears to be "m." An inspection of the original verdict, sent up in the record, will hardly support this contention. But if it did, the position is not maintainable. The intention of the jury is too plain and patent for discussion. For our views in regard to this matter, see Birdwell's case, 20 Southwestern Reporter, 556; Roberts' case, just decided at this term.
We deem it unnecessary to enter into a lengthy discussion of the charge. Suffice it to say, that an investigation of it discloses that every issue was fairly and fully submitted to the jury.
The defendant's rights were guarded with unusual care throughout the trial. The judgment should be affirmed, and it is so ordered.
Affirmed.
Judges all present and concurring. *Page 594