A review of the record in the light of the motion for rehearing leads to the conclusion that the denial of a new trial sought upon the ground that there was error in overruling the motion for a continuance, does not present error requiring or warranting a reversal of the judgment. The facts upon which the appellant's contention is based appear in the original opinion. The evidence was definite and uncontroverted that while the deceased was at his home, he *Page 534 expressed the intention and desire to kill the appellant but was caused to desist through the importunities and activities of his wife and sister; that he subsequently came unarmed to the home of the appellant and was there killed; that after he was shot he said in the presence of three witnesses that if it had not been for his wife he would have killed the appellant. Two of these witnesses were present upon the trial and testified to the declaration mentioned by the deceased. The third witness to the same fact was absent, and it was for the lack of his testimony that the motion to continue was sought. That the deceased made the declaration imputed to him by the two witnesses mentioned was contradicted by none. The trial court, in the light of the verdict and the entire record, refused to grant a new trial. The statutory law is embraced in Subdivision 6 of Art. 543, C. C. P. 1925 (old Code, Art. 608), in which the declaration is made that a continuance is not a matter of right, but is within the discretion of the trial court, to be reviewed on the motion for new trial in the light of the developments on the trial. In times too numerous to recount the provision of the statute mentioned have been interpreted by this court, as illustrated by the annotations under subdivision 6, Art. 608, Vernon's Tex.Crim. Stat., 1926, Vol. 2, and Vernon's Tex.Crim. C. C. P., 1925, Art. 543. From one of the cases we quote:
"The continuance is not a matter of absolute right, but in passing upon it the trial judge exercises a sound judicial discretion, subject to review, and its abuse when prejudicial, often results in reversal. Branch's Ann. P. C., Sec. 306, and cases there cited. A reversal will take place, however, generally speaking, in those cases only where from the evidence adduced upon the trial, the appellate court is impressed with the conviction that it is reasonably probable that if the absent witness would have been before the jury a verdict more favorable to the accused would have resulted." (Keel v. State, 84 Tex.Crim. Rep.).
Applying this construction to the facts at hand, it seems clear that the record would not justify this court in declaring that in refusing a new trial the learned trial judge abused the discretion which, under the statute, he was privileged to exert. Many analogous cases may be found. Among them are Bennett v. State, 95 Tex.Crim. Rep.; Hughes v. State,95 Tex. Crim. 65.
In paragraph 10 of the charge the court instructed the jury upon the law of self-defense, embracing both real and apparent danger, including the subject of threats. *Page 535
In paragraph 11 is embraced a separate charge touching the law of threats as contained in Art. 1258, P. C., 1925, (old code, Art. 1143) wherein it is said in substance that one charged with homicide may introduce evidence of threats made by the deceased, "but the same shall not be regarded as affording a justification for the killing unless it be shown that at the time of the homicide the person killed by some act then done manifested an intention to execute the threats so made." The paragraph appears quite comprehensive, conveying to the jury the information that the accused was privileged to act where the intention to execute the threats was manifested by either acts or words or both. The only exception to this charge was that in which it was asserted that it was not a submission in an affirmative manner of the appellant's defensive theory. We think the criticism is not sound. The charge clearly submits in an affirmative manner the defensive theory mentioned and in some respects gives the statute a scope more favorable to the accused than the law demands. It embraces the same idea as that contained in the special charge requested by the accused, save that it was broader and more favorable to him.
The motion for rehearing is overruled.
Overruled.