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55 Tex. Crim. 529

117 S.W 163

Bice v. State

Court of Criminal Appeals of Texas

Decided December 10, 1908

Court of Criminal Appeals of Texas · decided 1908-12-10

<p>1. —Murder—Continuance—Subsequent Applications.</p> <p>The failure to get a continuance does not change the fact that the application is made; it is the application for continuance that controls the matter of subsequent applications and not the fact of the application for continuance being granted.</p> <p>2. —Same—Subsequent Applications—Discretion of Court.</p> <p>Where upon trial for murder the case was continued on the application of defendant, and at a subsequent term the second application by defendant for continuance was overruled by the trial court and reversed by this court for such ruling, and thereupon another application for continuance was made by defendant, this became the third application for continuance, and was addressed to the sound discretion of the court.</p> <p>3. —Same—Immaterial Witness.</p> <p>Where upon appeal from a conviction of murder the record disclosed that no witness in the case ever saw the absent witness (for which the application for continuance was made) at the place of the killing or near it, there was no error in overruling the application for continuance.</p> <p>4. —Same—Continuance—Subsequent Application.</p> <p>Upon trial for murder where the record showed on appeal that the absent witness immediately disappeared from the county after the homicide, and roved about the country so- that defendant was unable to locate him; that the reputation of the witness was that of a dutiful son staying at home contributing to the support of his mother; that he was the nephew of the defendant; that there appeared to be a studious effort on the part of the defense to secrete this witness in order to secure a continuance; that this was the third application for continuance; that the testimony was largely cumulative, and there appeared no reasonable probability that the presence of the witness could be secured by a reversal of the case, there was no error in overruling the motions for continuance and new trial.</p> <p>5. —Same—Affidavit—Practice on Appeal.</p> <p>An affidavit in support of an application for continuance which had been overruled by the trial court, filed in the Appellate Court, can not be considered by the Court of Criminal Appeals as a part of the record.</p> <p>6. —Same—Jury and Jury law—Disqualification—Challenge—Talesman.</p> <p>Where upon trial for murder it appeared by the record on appeal that the juror complained of was a fair and impartial juror; that his name was furnished as a talesman on a list of five jurors, and that neither the State nor the defendant marked the juror’s name off of the list, there was no error.</p> <p>7. —Same—Charge of Court—Murder in Second Degree.</p> <p>Where upon trial for murder the first part of the court’s charge instructed the jury that the defendant had a right to go to the scene where the homicide occurred for the purpose of stopping trouble, and the second clause of the charge instructed the jury that the defendant had no right to go there and raise a difficulty, there was no error.</p> <p>8. —Same—Charge of Court—Murder in Second Degree.</p> <p>Where upon trial for murder the court instructed the jury that if defendant entered into the quarrel with the intention to kill deceased, or to inflict on him some serious injury and continued to press the difficulty until he shot deceased, he would be guilty of murder in the second degree, there was no error.</p> <p>9. —Same—Charge of Court—Manslaughter—Transport of Passion.</p> <p>Upon trial for murder where the court charged the jury th t they could find defendant guilty of manslaughter only in the event that the killing was done in a sudden transport of passion, such charge did not impose too great a burden on defendant. Following Waters v. State, 54 Texas Crim. Rep., 322.</p> <p>10. —Same—Charge of Court—Murder—Manslaughter.</p> <p>Upon trial for murder where, the evidence showed that the defendant either intended to kill the deceased or to commit a battery upon him; and the court instructed the jury if defendant provoked the difficulty with intent to kill, it would be murder, and if he provoked it with intent to commit simple battery, it would be manslaughter, there was no error.</p> <p>11. —Same—Charge of Court—Sufficiency of the Evidence.</p> <p>Where upon trial for murder the court’s general charge presented all the law of the case in a proper manner, and contained all requested charges applicable to the facts; and the evidence clearly supported the verdict of murder in the second degree, there was no error.</p>

Cited by 2 later decisions — most recently May 1928

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1908-12-10

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¶1 on rehearing.

¶2 March 17, 1909.

BROOKS, Judge.

¶3 This case comes before us on motion for rehearing.

¶4 Appellant in his motion criticises the fact that we stated in the original opinion that the evidence “clearly convinces this court that there has been a studious effort to secret the witness Dew Gully in order to secure continuance.” Appellant was indicted in August, 1905, and the trial took place on June 25, 1907. It is quite apparent from an inspection of the record, as stated' in the original opinion, that this witness was absent with the connivance and consent of Ms mother and appellant, and this suggestion is not controverted, to our minds," by the filing now in this court of the affidavit of the witness Dew Gully, in- which affidavit he states that he is now residing in Deberry, Panola County, Texas. This affidavit can not be considered by this court as a part of any record, nor can we allude to same in discussing the application and the record before us, but it does lend to our minds additional reason for holding that he studiously avoided the trial until now.

¶5 The second ground of the motion complains that the court erred in holding that appellant claimed and insisted that the third application for continuance was only a second application. That appellant only contended that the third application should be considered as a second application. The opinion did not say what appellant wás contending, but said in view of the fact that the second application had been overruled by the lower court and that this court *535 had held that said ruling was error, that this application thereby became a third application.

¶6 The fourth ground of the motion complains that this court erred in holding that the testimony of Dew Gully is cumulative. If it be conceded that this is true, still the motion for rehearing should not be granted because of the first ground stated in overruling same, to wit: that there seemed to have been a studious effort on the part of appellant to keep the witness away from court, or at any rate the record clearly shows that there was no reasonable probability of securing the attendance of the witness by a continuance of the case at the time the application for continuance was made, nor was there, at the time the opinion in this case was written by this court, any reasonable expectancy of securing the attendance of the witness. The record in this case shows that the witness was related to appellant; his mother living in the town; that he had been a dutiful boy, always stayed at home, and knew his testimony was of vital concern to appellant in the trial of this case, and yet he leaves the country, and if the testimony of appellant be true, never communicated with him at any time or let him know where his whereabouts was, and yet the court was asked under such a statement to indefinitely continue this case in order that he might find the witness. After a review of this record we are now more than ever convinced that the application for continuance was without merit.

¶7 The fifth ground of the motion complains that the court erred in upholding the charge of the trial court wherein the trial court charged the jury that it could find appellant guilty of manslaughter, only in the event that the killing was done in a sudden transport of passion. That the charge imposed too great a burden on appellant. We apprehend that this contention is predicated upon the decision of this court in the case of Kannmacher v. State, 51 Texas Crim. Rep., 118, 101 S. W. Rep., 238. This decision on this point has been expressly overruled in the case of Waters v. State, 54 Texas Crim. Rep., 322, 114 S. W. Rep., 628.

¶8 We have anew carefully reviewed all of appellant’s contentions in this case and must say that the original opinion is correct, and the motion for rehearing therefore is in . all tilings overruled.

¶9 Overruled.

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