Conviction is for assault with intent to murder; punishment fixed at confinement in the penitentiary for a period of eight years.
The injured party was the wife of the appellant. The tragedy is described by the State's witness, Miss Ethel Sprott, appellant's stepdaughter. There had been a separation, at least the appellant had been away from his home for some days. Upon his return, he asked his wife if he could come back home. Not receiving a favorable reply, he drew his pistol. The witness jumped in the lap of her mother, was ordered by the appellant to get out, and failing to do so, he shot her; and upon her falling her mother ran and was also shot. The appellant then shot himself. Other witnesses, including appellant's wife, gave a description of the shooting which coincided with that of the young woman whom we have mentioned.
Upon his arrest, there were found upon the person of appellant several letters which had been written by him. One was to his brother, one to his wife's brother, one to his stepdaughter, and one to the minister. In these letters he expressed affection for his wife, resentment at her treatment of him, and an intention to kill her and commit suicide. He also complained of mistreatment by his stepdaughter, and in his letter to his brother he gave minute information touching the amount of money that he owed and the name of each of his creditors.
Appellant was engaged as a guard of convicts in the penitentiary and had been so engaged for a long time. He introduced testimony of a non-expert witness to the effect that at the time of the occurrence, or about that time, his mind was unsound. The State's testimony combatted this theory and this was the controverted question before the jury.
An application for a continuance was made because of absence of a witness by whom he expected to prove acquaintance with the appellant and knowledge of his general conduct, disposition and behavior for eighteen years; that when worried or provoked his mind became unbalanced; and details of incidents in the conduct of appellant which the witness would relate as a predicate for his opinion were embraced in the application. The application disclosed that no subpœna had been issued to the witness, though he lived in a nearby town; that in the companion case for shooting Miss Ethel Sprott, the witness had been subpœnaed; that a telegram from the doctor had been received stating that "the son of the witness had typhoid fever and that it was impossible for him to come."
Diligence to procure the attendance of an absent witness is not established by showing that, in another case against the accused, pending in the same court, a subpœna for the witness had been issued. The law gives one accused of crime the right to compulsory process to secure the attendance of his witnesses, and imposes upon him the duty to cause the issuance of such process where he has knowledge *Page 456 of the witness and his whereabouts within the State. If, with such knowledge, he fails or refuses to avail himself of the privilege of issuing process and seeking to have it served, he is not in a position to demand that the court postpone his case because of the absence of the witness. The precedents upon this subject are definite. Isham v. State, 49 S.W. Rep., 594; Vanderberg v. State, 66 Tex.Crim. Rep., 148 S.W. Rep., 314; Cyc. of Law Procedure, Vol. 9, page 197. The reasons for this ruling embraced in the previous decisions of this court are deemed sufficient and a restatement of them is unnecessary. Even if the diligence was not wanting, the abuse of the trial judge's discretion in overruling the application is not apparent. He was not bound to accept the telegram from the doctor as conclusive evidence that the attendance of the witness could not be secured during the trial. The facts developed in the trial of the case, while they reveal the relevancy of the testimony of the absent witness, they disclose that it was not of controlling importance. It was not the contention of the appellant that he was permanently insane or that he was suffering from a malady continuous in its operation. It went to the extent only of asserting that he was subject to recurrent or fitful attacks of mental derangement, consequent upon excitement or agitation brought about by disturbing emotions. The absent witness, according to the application, would have testified to this general condition of the appellant's mind but could not have testified that at the time the offense was committed his reason was dethroned. His testimony circumstantially pointed to this conclusion and in this respect was cumulative of much other testimony which was before the jury. The crucial point in the case was the condition of appellant's mind at the time he shot his wife, and the existence of mental derangement at that time was not a presumption following the proof that upon other occasions he had become temporarily deranged. It being conceded that mental derangement was an exception, it was appellant's burden to prove that it prevailed at the time the offense was committed. Leache v. State, 22 Texas Crim. App., 279; Webb v. State, 5 Texas Crim. App., 596; Wooten v. State, 51 Tex. Crim. 428; Hunt v. State, 33 Tex.Crim. Rep..
It seems that the appellant had testified on a former occasion that he had no knowledge of what took place at the time the alleged offense was committed. The bill does not make it plain whether this occurred upon this trial or of another case. Assuming, however, that it was in a trial of another case, there was no error in admitting it. The rule prevailing in this State, as we understand, is that where one, upon the trial of his case, voluntarily becomes a witness and testifies to facts, which are relevant and material, they may be used against him in a re-trial or on the trial of another case involving the same transaction. Jones v. State, 64 Tex.Crim. Rep., 143 S.W. Rep., 622; Smith v. State, 75 S.W. Rep., 298; Preston v. State,41 Tex. Crim. 300; Williams v. State, 88 Tex. Crim. 87, *Page 457 225 S.W. Rep., 178. We are, by appelant, referred to Somers v. State, 54 Tex.Crim. Rep., 113 S.W. Rep., 533, but deals with a different question and is not in point in this case.
There was no error in permitting the sheriff to describe the demeanor of the appellant at the time of his arrest. This testimony was admissible as bearing upon the issue of insanity. Lane v. State, 59 Tex.Crim. Rep., 129 S.W. Rep., 353; Hurst v. State, 40 Tex.Crim. Rep., 50 S.W. Rep., 719; Mikeska v. State, 75 Tex.Crim. Rep., 182 S.W. Rep., 1127. Nor did the court err in permitting the sheriff to give his opinion, based upon the conversation with the appellant and his conduct while in his custody touching his insanity. Turner v. State,61 Tex. Crim. 97; Cannon v. State, 41 Tex.Crim. Rep.; Lane v. State, 59 Tex.Crim. Rep.; Burt v. State, 38 Tex. Crim. 397; Plummer v. State, 86 Tex.Crim. Rep..
The record reveals no error which would authorize a reversal of the judgment. It is therefore affirmed.
Affirmed.
ON REHEARING. June 1, 1921.