¶1In the submission of this case we understood appellant, through his attorneys, conceded that the only questions necessary to be decided were those discussed in the original opinion.
¶2However, his attorneys claim that while they only presented those questions in oral argument at the time, none of the others were waived *63 but were relied upon. It, therefore, becomes necessary to now pass on all these questions.
¶3We have again reviewed the case and all the questions in it and are confirmed in the opinion that no reversible error was committed by the trial court.
¶4We will state succinctly the material testimony. Adam Butcher, with his family, lived about three and one-half miles about south from Aquilla, in Hill County. Appellant at the time of the trial was a young man twenty-five years old. He had married a widow, Mrs. Stacy, about four years before the killing. Mrs. Stacy had three times before then been married to other men and had children by each of them. Her last husband before appellant was also named Stacy but no relation of appellant. Mrs. Stacy was about fifty-two years old when she married appellant, or at least, at the time of his trial she was that old. At the time they were married four of the Stacy children, two girls and two boys, lived with their mother. The two boys, John and Joe, were then, respectively, about fifteen and thirteen years old. Both of them after this marriage quit their home and struck out for themselves. Each, however, returned to their mother's and appellant's home from time to time, and occasionally stayed a few days at a time. The two girls were still younger than these boys. It seems about a year after the marriage, trouble arose between Joe, the deceased, and appellant, which resulted in Joe removing, and thereafter remaining, from his home. At the time of the homicide appellant with his wife and her said two daughters lived in Aquilla. On the night of May 7, 1914, Butcher gave a dance at his house in honor of appellant and invited thereto a considerable number of guests, and among them John and Joe Stacy, who attended the dance. Appellant took his wife and said two girls in the buggy with him to the dance that night. However, he armed himself with a pistol buckled around him, which he carried to the dance and kept on his person concealed until he killed deceased therewith.
¶5Just before or about midnight, in the progress of the dance, John Stacy was going to dance with his sister, Kitty, in one of the sets. Kitty was then about fifteen or sixteen years old. Appellant forbade her dancing with John and prevented her doing so. This incensed John and he left the house, went out some, perhaps, thirty steps therefrom, others with him or soon afterward followed him, where he proceeded to vent his spleen to them about appellant, and curse and abuse and threatened he would whip him. Joe and Butcher being made aware, or hearing the disturbance, went out to where John was. Appellant also went out of the house about this time outside of the yard about his buggy and stopped some thirty yards from where John and the others then were. He heard at least a part of what was said by John and Joe at this time and heard, as he states, the threats to whip him, etc. Butcher and Joe, and perhaps others, undertook to pacify John, and did pacify him, he agreeing to drop the matter, which he did. He put on his coat and started back into the house. In passing back to the *64 house he passed in four or five steps of where appellant was at the time, and after passing him some five or six steps, with his back toward appellant, and doing nothing and saying nothing to appellant, appellant then shot and instantly killed Joe, who was standing three or four feet from him.
¶6Adam Butcher testified that after quieting John they all started to the house, John ahead. He said: "I saw Lee Stacy as we were going to the house. When I first saw him he walked up to Joe, in about four or five feet of him, and I heard him tell Joe for them to cut that out and cut it out quick; he just says, `Now, you G__d d__n boys, cut this out and cut it out quick'; that is the words he said. . . . Joe stopped when Lee spoke to him. When Joe stopped Will Wright was right up close to him on the left hand side of him and I was on the right hand side of him and about four or five feet maybe from him. When Lee Stacy said that I looked around and Joe said something, but I never understood what Joe said, and Lee shot him. Lee just pulled his gun out and rested his elbow against his side, just that way (illustrating) and shot. He rested his elbow against his right side. The weapon he used was a pistol. When Lee Stacy fired the shot Joe Stacy was just standing there with his hands down, and when Lee started to shoot he threw his left hand up. Lee had pulled his pistol before Joe throwed his hand up. Before Lee pulled his pistol Joe was just standing still with his hands down that way (illustrating). At the time that Lee Stacy made the remark that I have testified to and drew his pistol I saw Joe Stacy's hands. There was nothing between me and Joe Stacy at that time, and I was only about four or five feet from him. It was a nice, pretty, bright moonlight night; the moon was about straight up and down. There was nothing where I was or where Joe Stacy was or where Lee Stacy was at that time to prevent me from seeing the parties. When the pistol fired Joe Stacy just tumbled down, fell to the ground backwards and a little bit on his left side. I saw his hands when he fell; one of them was lying across his breast and the other was lying on the ground stretched out. The right hand was lying stretched out, open on the ground with the palm up. The left hand was lying open on his breast. There was nothing in the palm of Joe Stacy's right hand when he was lying there on his side and back on the ground. There was nothing on his breast or his body at that time at or near his hand where it was lying on his breast. I went to the body after Joe fell, went right to it immediately after he fell. Lum Hardin also went to the body at that time. Mr. Lee Stacy told me to see if Joe Stacy was dead and to phone for the doctor." This witness then states that he went into the house and phoned for the doctor; that this kept him some fifteen minutes in the house. He then states that he went back out to the body of deceased, and then for the first time saw an open knife on the body of the deceased, lying on or about his right shoulder.
¶7Will Wright testified that he was standing right at and with Joe when appellant shot him, — so close that he was powder burned from appellant's *65 pistol shot. He said: "I saw Joe Stacy's hands at the time that Lee fired. They were down by his side and were open just like a man would have his hands down. There was nothing in his hands at that time." He further said Joe was bareheaded and in his shirt sleeves.
¶8Mrs. Butcher testified that she was standing on her gallery when the shot was fired and went immediately to the body of the deceased. That she felt of the head and pulse of the deceased, kneeled down by him and felt of his other hand, and said: "There was not anything in either one of his hands at that time." Further, "there was no knife or weapon of any kind on his shoulder here at that time that I seen. There was nothing there between me and the body to prevent me from seeing a knife on his shoulder here if there had been one there."
¶9The next day after the killing the justice of the peace held an examining trial, and among other witnesses who testified for the State, was Lum Hardin, the witness whose absence appellant sought a continuance for. His testimony was taken down in writing and signed by him. After telling about being out where John and Joe were when John was venting his spleen against appellant he went back into the house. We then quote his evidence:
¶10"I was in house about five minutes and went out in front and heard John fussing and talking, and I `lowed it was a row. When I got out there I heard him speaking about Lee, didn't understand what he said. At that time Lee was standing out ten or twelve steps from where the boys were standing and I guess about twenty-five or thirty steps in front of the house. Joe and somebody else, I think Mr. Butcher, were holding John. Joe said, `It ain't no use in talking about it so much. We will just whip the damn son ___ bitch.' Lee said, `Turn them aloose. I don't think there is any harm in 'em,' something like that. John kept walking toward the house with Joe. Joe stopped and at that time he was north of Lee and going west towards the house. I don't know why Joe stopped. At time he stopped he was four or five steps from Lee. The direction that Lee was going at time he stopped would have led him to door of the house. At time Joe stopped I was a step or two from Lee and four or five from Joe. If Joe Stacy said anything I don't remember. I never heard Joe say anything that I recollect before the shooting. Joe stopped and turned to his left facing Lee, and Lee immediately reached back and pulled his gun and shot Joe. He didn't pull the gun so overly quick. I never noticed whether or not Joe had anything in his hands at time of shooting. Lee said something about a knife, but I don't remember what it was he said. I don't remember whether he made that statement before Joe stopped or afterwards, or before he shot Joe or afterwards. Immediately after Lee shot Joe, in a minute or two, I and Mr. Butcher walked by Joe. I walked slowly by Joe and looked at him. I was four or five steps from him and it was light so I could see him distinctly. I could see his face, and arms and legs clearly. I saw no knife about his person. I again looked at Joe's body up close enough to see him plainly, when the doctor come. *66
¶11After the doctor got there I looked at Joe's body again and saw a knife laying upon Joe's right breast up over his right lung. It was a two-bladed knife with little blade open. The knife was lying lengthwise with his body, with the blade pointing up towards his head.
¶12(Snd) Lum Hardin."
¶13Cross: "I came out at the east door at opposite side from door I went in. Lee was out in front of house and I walked to side of Lee and put my hands on his shoulder and said something. Me and him talked a few words, but I disremember what we talked about. Somebody was standing there with Lee. John and Joe were walking by Lee and Joe stopped. The remark Lee made about a knife was immediately before or at time of the shooting. The second time I looked at Joe's body Lee told me to go for doctor."
¶14All the testimony shows that appellant remained out about the body of the deceased some little time after he sent Butcher to telephone for the doctor. All of the witnesses who testified on the subject testified that when they later saw and examined the body of the deceased that they then for the first time saw an open pocketknife lying on the body of the deceased about his right shoulder. No evidence is given showing that this knife was the knife of deceased. The State introduced evidence tending strongly to show, and from which the jury were clearly justified to believe, that this knife was appellant's knife and opened and placed on the body of deceased by appellant after he had killed him.
¶15Appellant testified said knife was not his knife and that he did not place it on the body of the deceased, and that when Joe, deceased, got in about six or eight feet of him, "Why, I says to Joe, I says, `Joe,' I says, `there is not any use of this,' and he said something back to me and I didn't understand what it was, and when he did why I pulled a gun and shot him. At the time I shot he was coming on to me with a knife. At the time I spoke he was about as far as from here to that outfit there, and when I shot him he was something like three feet, maybe three and a half feet or four feet from me. At the time I shot him he was standing just about in that position (illustrating), For instance, like I was standing there, he was standing like this (illustrating), and when I pulled the gun out he had his knife in his hand coming onto me. He had the knife in his right hand, and when he seen me go for the gun he reached this way with his left hand; I taken it he was reaching for the gun, and when he did I pulled the trigger," claiming that he killed him in defense of his person.
¶16But little further need be said about the court's overruling appellant's application for a continuance and refusing a new trial on that ground. Appellant overlooks the fact that we did pass upon the question in the original opinion from the basis of the State having had a subpoena issued for the absent witness. We cite two of the decisions appellant now cites (Mixon v. State,36 Tex. Crim. 66, and Byrd v. State, 39 Tex. Crim. 609), and quoted what Judge White said on the subject. It is unnecessary to repeat that here. The bills *67 on the subject of the court's refusal to continue are very lengthy. A careful consideration of them, we think, demonstrates that neither the State nor the appellant used any sufficient diligence before the case was called for trial to ascertain the whereabouts of the absent witness or have him served. Both sides apparently relied alone on the fact that at the time of the killing, more than six months before this trial, Lum Hardin was then a resident of Hill County; no inquiry whatever was made after that to ascertain where the witness was; that some considerable time before the trial, the time not being definitely shown, said witness had left Hill County. How long he had been gone is not shown and none of the parties seemed to have ascertained even this fact until after the case was called for trial. Any diligence, the slightest, by either side, would unquestionably have ascertained this fact and in ample time to have had him subpoenaed and in attendance if in the State, or if out of the State, his depositions could have been taken.
¶17In the two cases cited and relied upon by appellant, McMillan v. State, 66 Tex.Crim. Rep., 146 S.W. Rep., 1190, and Valigura v. State, 68 Tex.Crim. Rep., 150 S.W. Rep., 778, more diligence was therein shown than herein. Besides, in each of those cases on the motion for rehearing the appellants therein procured and filed in connection with their motions for new trial the affidavit of the absent witnesses specifically stating what they would testify, which, in each instance, would show that the appellants therein were not guilty, and both of those cases were reversed for that reason. No such affidavit, nor any, is shown in this case.
¶18Appellant offers no new argument or authority in support of his contention that the State's cross-examination of Mrs. Stacy, wife of appellant, was improper. We correctly passed upon that question in the original opinion and cited some of the authorities.
¶19The only other question discussed in the opinion was appellant's complaint to the argument of Mr. Frazier and the action of the court in connection therewith. This was sufficiently stated in the original opinion and some of the cases therein cited. In addition, on that point we cite Mooney v. State, 76 Tex.Crim. Rep., where we review this question more fully and cite other authorities.
¶20Miss Josie Wright was a young lady who lived in the same community where deceased and appellant lived. She testified that deceased visited her very often just before he was killed (appellant testified he knew this); that they were engaged to be married and had fixed the time in July, 1914, to be married; that in March before he was killed in May she and her mother went on a visit to North Texas and were away on this visit when deceased was killed. That the appellant saw her often in passing back and forth and that he made love to her repeatedly; that appellant asked her if she and Joe were going to marry, and she told him they were, and that he also asked her mother, and her mother told him that they were, and "he said we should not marry; that he would kill him first"; that this occurred just before she and her mother left on said visit. Appellant, it seems, made no *68 objection to this evidence when introduced. At least, there is no bill of exceptions thereto. But he asked, and the court refused, to give a special charge not to consider the testimony of Miss Josie Wright in regard to an alleged threat of defendant. It was shown that the mother of Miss Wright died before the trial. Mrs. Will Wright was permitted to testify, over appellant's objection, that she saw appellant the evening before deceased was killed that night; that he had a conversation with her in which he asked her if she knew whether Joe and Josie were going to marry or not, and if she knew when Josie and Mrs. Wright, her mother, were coming back; that she told him she did not know when they would return, and that she did not know whether Joe and Josie were going to get married or not, but that Carrie, Joe's half-sister, said that they were going to marry in June. Appellant said, "I bet you a thousand dollars against a nickel they don't marry in June."
¶21Clearly, under all of the authorities, the testimony of Miss Wright and Mrs. Wright, just above stated, was admissible to show threats, motive, malice, and intent by appellant. White's Ann. P.C., secs. 1230-1231.
¶22The record shows that when the trial judge prepared his charge he submitted it, as required by the statute, to appellant's attorneys; that they made several objections thereto. Thereupon, the court, doubtless in order to meet these, or to properly correct his charge as pointed out by the exceptions, rewrote it; that when again presented to appellant's attorneys they made only this exception to subdivision 16 of it, which is preserved by bill of exception: "2nd — Said charge is defective in failing to tell the jury that the defendant had a right to defend against apparent danger from either John Stacy or Joe Stacy or both of them and in failing to advise the jury of the rights of the defendant if he believed the attack or threatened attack was by both of them."
¶23In order to discuss this question we will quote the whole of the court's charge on the subject of self-defense. It is:
¶24"15. You are further instructed that a reasonable apprehension of death or serious bodily harm will excuse a person in using all necessary means to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared from his standpoint at the time; and in such case the party acting under real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant. If, therefore, from the evidence you believe that the defendant killed the said Joe Stacy, yet if you believe that the words, acts and conduct, or either, of the deceased, at the time of or just before the killing, caused the defendant to have a reasonable expectation or fear of death or serious bodily injury, and that acting on such reasonable expectation or fear the defendant killed the deceased, or if you have a reasonable doubt as to said matters, then the killing was in self-defense, and you should acquit the defendant, and so say by your verdict; and in determining the question as to whether or not the defendant had a reasonable apprehension or fear of death or serious bodily *69 harm at the time he killed the deceased, if he did kill him, you must view the matter from the standpoint of the defendant at the time, and from his standpoint alone; and if the defendant had a reasonable expectation or fear of death or serious bodily harm, viewing the matter from his standpoint alone at the time, he had a right to shoot until he believed himself to be out of danger.
¶25"16. You are instructed that if the deceased was attacking or about to attack the defendant with a deadly weapon under the law it would be presumed that he intended to kill the defendant. And if you have a reasonable doubt from the testimony as to whether the deceased attacked the defendant or was about to attack the defendant with a deadly weapon, or viewing the matter from the defendant's standpoint, the defendant had a reasonable apprehension that the deceased was attacking or about to attack the defendant with a deadly weapon you will indulge the presumption that the deceased intended to kill in favor of the defendant."
¶26It is clear from the record that in order to meet this objection the appellant requested and the court gave, just as asked, his special charge No. 3, as follows:
¶27"Gentlemen of the Jury: You are instructed that if you believe from the evidence that defendant was attacked by Joe Stacy or by Joe and John Stacy or was threatened with attack by them or either of them that he was not bound to retreat but had the right to stand his ground and defend against such attack." At any rate, this special charge is all that should, under any of the testimony of this case, have been given. All the evidence, without any doubt, shows that notwithstanding John Stacy had wanted by his talk, to whip appellant and applied in the hearing of others and in appellant's hearing opprobrious epithets about him, yet, at the instance of Joe Stacy and others he had entirely abandoned any attack upon appellant, and had expressly agreed to do so; that he thereupon put on his coat and started back into the house to the dance; that in so going he passed in four or five steps of appellant, in plain view of him, and appellant did not deny this, though he said he did not see him do so. The testimony of no witness shows or tends to show that at the time and just immediately prior to when appellant killed deceased that John Stacy said or did anything whatever showing an attack or any contemplated attack whatever upon appellant then. All the witnesses who testified on the subject showed that John Stacy was going back into the house at the time. Adam Butcher testified, "It was about fifteen or twenty feet, I expect, from where Joe Stacy was shot to where Johnny had got at the time of the shooting; Johnny was right at the steps that lead over the fence. I had stopped there when Lee walked up to Joe, and Joe and Lee had stopped when I last saw Johnny Stacy going on towards the house. I never measured how close Johnny Stacy passed to Lee, but I guess it was about five or six feet." Substantially to the same effect is the testimony of Will Wright. The justice of the peace made a map of the ground and its surroundings where the killing occurred. The location of where the deceased *70 fell and the appellant stood when he killed him is shown by the map exhibited before the jury and the places pointed out. John Stacy testified: "When I heard the report of the pistol that killed Joe I was in about three steps of these steps here going over the fence. In going to that point within three or four steps of the steps leading over the red fence I met and passed Lee Stacy before I got to where I was when the pistol fired. At the time that I passed Lee he was out up towards the yard fence, up towards that big tree, and was in about four or five steps of me when I passed him. My brother, Joe, was behind me at the time that I passed Lee. . . . I was about ten steps, I guess, from the steps leading over the fence when I first saw and passed Lee. There was no one with me at the time I passed him; I was by myself."
¶28On this point appellant himself swore that after the party started away from where Johnny had been cursing at and abusing him: "I seen Joe start towards me, but I would not say which way Johnny was. I would not swear that Johnny passed me or where he went to, it was crowded up there, there was several of them there, and I would not swear that he did pass me. I had my eyes on Joe. . . . As to whether I saw the two boys, Joe and John as they started away from there going toward the house, I will say that I saw Joe as he started towards me. . . . I won't swear that I saw them both coming towards me. I did not say awhile ago that they both came at me; I said that Joe did. The last time I seen John was when Joe started towards me. When Joe started to me they were standing there, the whole crowd was all standing around there, and when Joe said what he did, why I kept my eyes right on him, and never looked to see which way Johnny did go, where he was at. I heard John curse me, but I didn't keep my eyes on him because I kept my eyes on Joe; from what he said I had a good right to watch him. I didn't have the same right to watch John because Joe started to me and I never did see where John went to." As stated, the testimony of no witness, nor all of it together, shows or tends to show that John Stacy did or said anything at the time of the killing to show that he then was making or attempting to make any attack whatever upon appellant, and the testimony shows that he then said nothing to Joe to in any way encourage or induce him, Joe, to attack appellant.
¶29No one can question the law that where an attack is made upon an accused by two persons, they both being present, or by one person when the other is present in any way aiding or encouraging the attack that the accused would have the right to defend against both as well as either, and whenever the evidence raises such a question it would be proper for the court to correctly charge the jury on the subject; but in this case the evidence shows that John Stacy was not in any way making any attack upon appellant, nor in any way aiding Joe to do so. On the contrary it excludes any such idea. So that the court committed no error on this point as claimed by appellant.
¶30The motion is overruled.