¶1I. Without determining whether or not the diligence used by defendant to obtain the testimony of the absent witnesses Wright, Knight and Davis was sufficient, we are of the opinion that the court did not err in overruling the application for continuance, in view of the evidence developed on the trial. There was no self-defense in the case.
¶2Evidence of threats made by the deceased against the defendant could afford no justification for the homicide, in the absence of any evidence showing that at the time of the homicide the deceased, by some act then done, manifested an intention to execute the threats. There was no such evidence adduced on the trial, but on the contrary it was proved that the deceased was not making any demonstration whatever against the defendant indicating an assault upon him, but that the defendant deliberately advanced upon him, armed with a drawn pistol, and shot and killed him. Tinder this state of case, evidence of threats would avail nothing, and was immaterial. (Penal Code, art. 608; Horbach v. The State, 43 Texas, 242; Irving v. The State, Id., 236; Johnson v. The State, 27 Texas, 758; Lander v. The State, 12 Texas, 462; Carter v. The State, 8 Texas Ct. App., 372.)
¶3*645What the defendant told the witness Wright about the homicide, at the time he surrendered himself, was a self-serving declaration; not a part of the res gestee, and would not have been admissible. As to the witness Armistead, no diligence to obtain his testimony was shown, and furthermore, his testimony was immaterial, considered with reference to the evidence on the trial.
¶4It was not error to overrule the motion for new trial upon the grounds of the separation and misconduct of the jury. It was not made to appear that probable injustice to the defendant ivas occasioned thereby. It was very reprehensible for the jury to send for and obtain whisky, and drink the same during their deliberations upon the case, and such conduct should always be visited with pun= ishment to those guilty of it. But no such immoderate use of intoxicating liquor is shown to have existed in this case as would, in the absence of circumstances tending to show that it had influenced the verdict of the jury, warrant the setting aside of the verdict. (Davis v. The State, 3 Texas Ct. App., 91; Cox v. The State, 7 Id., 1; West v. The State, Id., 150; Jachi v. The State, 26 Texas, 1; Webb v. The State, 5 Texas Ct. App., 596; Tuttle v. The State, 6 Id., 556; Ogle v. The State, 16 Id., 361.)
¶5We have given attention to all the questions presented in the record, and discover no error demanding or justifying a reversal of the conviction, and the judgment is affirmed.
¶6Affirmed.
¶7[Opinion delivered March 18, 1885.]