Dixon v. State

<p>1. Criminal law <&wkey;598(2) — An application for continuance to procure an absent witness held no lack of diligence.</p> <p>In a prosecution for homicide, where defendant relied on self-defense, and applied for continuance to get a witness by whom he expected to prove that the deceased had made threats against defendant’s life, which had been communicated to defendant prior to the shooting, where indictment was filed April 8, subpoena for the witness was issued April 11 and served April 25, and the motion presented on May 12, the first day of the trial, and after a delay of one day was again presented, defendant having procured an attachment for the absent witness directed to H. county, where the witness was claimed to be temporarily located, there was no lack of due diligence.</p> <p>2. Criminal law &wkey;>586, 959 — Discretion to deny continuance not absolute; on motion for new trial for refusal of continuance, diligence in getting witness, materiality, ahd probable, effect considered.</p> <p>The discretion of the trial court to overrule a motion for continuance is not absolute, and, in reconsidering the matter upon hearing a motion for new trial, the sufficiency of the application for continuance in the way of diligence, materiality, and probable effect on defendant’s case are matters for the consideration of the court</p> <p>3. Criminal law &wkey;v11661/2(5)— Service of correct list of jurors on defendant, and postponing trial one day thereafter, makes error in return of sheriff on venire writ immaterial.</p> <p>In a prosecution for murder, where the sheriff in his return to the special venire writ gave a list of jurors summoned, but left blank the space corresponding with the names and number of three, of whom one attended, another filed an affidavit of exemption, and the other was out of the county and not served, a delay of one day and serving on defendant -a correct list of the jurors summoned, as required by Vernon’s Ann. Code Or. Proc. 1916, art. 672, made the irregularity in the return to the writ immaterial.</p> <p>4. Jury &wkey;>55 — Juror to be exempted must testify to facts on which he bases exemption in open court or by affidavit.</p> <p>A juror to be exempted must appear in open court and testify to .the facts on which he bases his exemption or make a written affidavit, and file it with the clerk as provided by Vernon’s Ann. Code Cr. Proc. 1916, art. 676.</p> <p>5. Criminal law &wkey;>l 166[/2(6)— Jury <&wkey;55— Excusing a juror, a state officer, by court without requiring affidavit irregular, but not reversible error.</p> <p>The excusing of a juror, who was a state officer, on his informing the trial judge in advance of the trial that he wished to be exempted, to which the judge assented without requiring his affidavit to be filed, was irregular, but, where it appeared on motion for a new trial that the facts establishing the juror’s exemption existed, was not reversible error.</p> <p>6. Criminal law &wkey;409l (4) — Bill of exceptions objecting in general terms to evidence, part of which is admissible, shows no error.</p> <p>Where bill of exceptions complains of the admission of evidence, some of which is admissible and some of which should have been excluded, the failure to segregate and point out that which is claimed should have been excluded makes the bill too general to show error.</p> <p>7. Homicide <&wkey;>165 — Evidence of disagreement between deceased and his wife held admissible.</p> <p>In a prosecution for murder, in which the contention between defendant and deceased was difficulties between deceased and deceased’s wife, who was defendant’s sister, evidence of the conduct of deceased and his wife toward each other, and their relations, was relevant as showing the state of mind of the defendant and the deceased.</p> <p>8. Homicide <&wkey;>300(l) — Failure to instruct that defendant bad right to arm himself and seek deceased for, an explanation of bis conduct toward his wife held not error.</p> <p>In a prosecution for murder, where no charge was given on the issue provoking the difficulty, and on limiting or qualifying the right of perfect self-defense, the failure to instinct that defendant had a right to arm himself and seek deceased for an explanation of his insulting conduct toward his wife, defendant’s sister, was not error.</p> <p>On Motion for Rehearing.</p> <p>9. Criminal law <©^595 (6) — Refusal of continuance for absence of witness held reversible error.</p> <p>Under Vernon’s Ann. Pen. Code 1916, art. 1143, making admissible proof of threats when one accused'of homicide justifies on the ground of self-defense, in prosecution for murder, where there was a direct conflict as to whether deceased made a hostile demonstration toward defendant, refusal of continuance to enable defendant to get a witness, by whom he expected to prove that deceased had tried to get a pistol, and had threatened to hill defendant, which threats had been communicated to the defendant by the absent witness, was error.</p>