Conviction for murder; punishment, thirty-five years in the penitentiary.
We find in the record two bills of exception, one complaining of the refusal of a continuance, and the other taken to the refusal of a *Page 557 new trial based in part on the refusal of said continuance and in part on the claimed insufficience of the testimony.
The application for continuance contains nothing from which it could be inferred that same was a first application. In such case the rules and the decisions of this court require that same be considered as a subsequent application. Mitchell v. State, 87 Tex.Crim. Rep.. Our statute, which is upheld by decisions of this court, requires that all applications after the first must show that the absent testimony cannot be procured from any other source. See Arts. 543-544, C. C. P.; Fulkerson v. State, 57 Tex.Crim. Rep.; Land v. State,34 Tex. Crim. 330; Taylor v. State, 88 Tex.Crim. Rep.. We see no error in the refusal of the application for continuance.
We are unable to agree with appellant's contention in his motion for new trial that there is anything in the record from which we may know that the trial court was compelled to take judicial cognizance of the fact that the application for continuance was the first application. We treat an application for postponement as one for a continuance, in determining whether the particular application under consideration is a first or second application and for all we know there may have been such prior application. Be that as it may, we are of opinion that the application for continuance was wholly lacking in any showing of diligence, there being no process attached, or showing of process for any of the witnesses named therein, and when taken in connection with the motion for new trial and viewed in the light of the facts before the learned trial judge, we are of opinion that no such materiality was shown in the absent testimony as would make his refusal of said new trial, in so far as same was based upon the overruling of the application for continuance, any abuse of his discretion. The State controverted the application for continuance and attached thereto an affidavit of the only witness whose materiality is of importance, and the statements in said affidavit are in direct refutation of much of the testimony given by appellant. This could be demonstrated by setting same out, but we do not deem it necessary.
On the question of the sufficiency of the testimony, we think the record to contain enough facts supporting the proposition of guilt to justify the jury in so concluding. Appellant testified that on Monday preceding this killing on Friday he went to town and there saw a Mexican man in jail; that he arranged with the officers to let said Mexican go to appellant's home and pick cotton for him. *Page 558 He testified that the next day said Mexican did pick cotton, and that on the day following, — which would be Wednesday, — a Mexican woman named Flossie, whom he had seen in town, came to his house and wanted permission to pick cotton with the Mexican man above referred to. Appellant said he took the matter up with his wife, knowing she was of a jealous disposition, etc., and that she agreed that Flossie might be so employed. Appellant further testified that the following morning (which was Thursday morning), his wife wanted this woman to get up and help her with breakfast, and upon refusal of the woman so to do his wife got mad. He further testified that later in the day his wife came out into the cotton patch and demanded that he or the Mexican woman, one, leave the patch, and that they had a considerable row about it. He further detailed the fact that next morning while getting breakfast his wife renewed the row about the Mexican woman and they quarreled for an hour or two about it. He said he then went away with a bale of cotton and returned, and it being a showery day, the cotton pickers came to the house and were invited by him to come in to the fire and dry themselves. He said here the quarrel with his wife was renewed, and that he finally directed a man to take the Mexican woman to town in a car. He said that his wife stated that if the man took the Mexican woman to town she would kill them both, and he said that as the man and the Mexican woman started around the house in the car he went in the house to prevent his wife carrying out her threats, and that she had a gun, and that he was mad and she was mad, and that he "ran into her" and grabbed her, gun and all and that the gun went off, shooting her. This was substantially his account of the way the killing occurred, intermingled with many statements of affection for his wife, and other details. A negro woman, of whom he said his wife was also jealous, testified that she was working out in the yard washing and heard the shot, and that appellant came out of his house and told her he had accidentally killed his wife in a struggle over the gun. The young daughter of the negro woman mentioned testified for the State, that she was looking in the house through an opened door just before the shooting and saw appellant with a gun in his hands pointed down from which he was extracting shells. She said in a moment he raised the gun and fired it, and that she saw deceased, — whom she had not been able to see before that in the house, — fall forward to the floor. Two empty shells were found near the body of deceased, and one empty shell was in the gun. It was shown by the undertaker and the doctor who examined *Page 559 the body that the woman was shot once, the bullet entering beneath her left jaw and coming out about the edge of the hair in the rear, producing instant death. Both of said witnesses further testified that the woman had as many as fifteen or eighteen bruises on her body between her hips and knees, one of them saying the spots were black and blue, and that they gave evidence of being recently inflicted. One of these spots in size and shape corresponded with the butt of the gun with which the woman was killed. Appellant admitted in his testimony that during his quarrel with his wife he jerked the gun away from her and shoved her down. He also admitted that on the morning before the killing he struck her as many as three times.
The trial court in his charge fully and fairly instructed the jury regarding the theory of self-defense and of accidental homicide resulting from the discharge of a gun over which appellant claimed he and his wife were struggling. We regard the testimony as sufficiently meeting and overcoming any claim of accidental discharge of the gun.
While not to be considered as sustaining the proposition of the sufficiency of the testimony, we might observe that the affidavit of the absent witness Baker which was attached to the State's controversy of the application for continuance, contained the statement that he heard no quarreling between appellant and his wife on the morning of the homicide; that there was a peaceful dinner and that when he was leaving the premises with the Mexican woman in the car that afternoon, appellant and his wife were standing in the yard together; that they had no gun.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.