Eason v. State

<p>1. —Murder—Manslaughter—Lecture to Jury—Practice in Trial Court.</p> <p>It is not proper for the trial court to tell a venire from which a jury is to be drawn that any law whose application is sought by the accused in any case to be tried by said jury .has been abused and badly so; nor should the jury be warned against disqualification on such voir dire because of prejudice against the named law, etc. However, in the absence of a motion to quash the panel, and that the defendant was given the right to challenge for cause, there was no reversible error.</p> <p>2. :—Continuance—Threats by Deceased—Bill of Exceptions.</p> <p>It is statutory that the application for continuance must not only set out the facts expected from the absent witness, but must also make it appear that they are material, and the record on appeal showing that it nowhere appears that at the time of the homicide the deceased had done or was doing anything manifesting an intention to execute any threat theretofore made by him, and this being the substance of the absent testimony, there was no error in overruling the application. Following Brooks v. State, 24 Texas Crim. App., 274, and other cases.</p> <p>3. —Same—Continuance—State ’ s Admissions—Threats.</p> <p>Where it was admitted by the State’s attorney that the alleged absent testimony of all of said absent witnesses was true except that of one certain witness, and said latter witness’ testimony was immaterial as the alleged threats were not attempted to be executed, there was no reversible error.</p> <p>4. —Same—Evidence—Clothing of Deceased—Course of Bullet.</p> <p>Where, upon trial of murder and a conviction of manslaughter, the issue was made as to whether deceased was facing defendant when the bullet entered his body or fleeing from him, there was no error, in connection with the testimony of a physician who examined the body of deceased, to introduce the clothing of the deceased worn at the time he was shot and to show that the bullet entered the back of the body.—</p> <p>5. —Same—Illicit Intercourse—Credibility of Witness—Rule Stated.</p> <p>Where, on cross-examination, defendant’s wife was asked if deceased ever came to her house at any other time than on the two occasions to which she had testified in her examination in chief, to which she replied that he never had, there was no error to permit the State in rebuttal to prove that about a year prior thereto deceased had been seen visiting her home. One spouse testifying in behalf of the other may be impeached in the same way as any other witness. Following Magruder v. State, 35 Texas Crim. Rep., 214, and other cases.</p> <p>6. —Same—Evidence—Credibility of Witness—Cross-Examination.</p> <p>Where defendant’s wife testified that the intercourse had with her by deceased on the occasion which she claimed to have narrated to the defendant the day before the homicide was without her consent, there was no error on cross-examination to show that this was not the case. Distinguishing Young v. State, 59 Texas Crim. Rep., 137, besides, the matter passed out of the case when defendant was convicted of manslaughter.</p> <p>7. —Same—Evidence—Impeaching Testimony—Manslaughter.</p> <p>Where defendant claimed an insult by deceased to his wife, there was no error in permitting the State to introduce testimony that defendant told the State’s witness of an insult to the wife of defendant by another man prior to the homicide; besides, the conviction being for manslaughter, the admissibility of this testimony passes out.</p> <p>8. —Same—Witness under Rule—Discretion of Court.</p> <p>Where the witness was summoned after the trial began and came into court and remained there for some time, without the knowledge of anyone, the matter was within the discretion of 'the trial judge to permit him to testify.</p> <p>9. —Same—Misconduct of Jury—Presumption—Practice in Trial Court.</p> <p>Where misconduct of the jury was set up, and the trial court heard evidence and found against the defendant, the presumption is in favor of the correctness of his ruling, and it appearing from the record that the alleged misconduct of the jury could have been of no injury to the defendant, there was no reversible error.</p> <p>10. —Same—Sufficiency of the Evidence—Rehearing.</p> <p>Where, upon trial of murder and a conviction of manslaughter, the evidence sustained the conviction under a proper .charge of the court, there was no reversible error.</p> <p>11. —Same—Continuance—Motion for New Trial—Threats—Self-defense.</p> <p>Where appellant contended in his motion for rehearing that he should have been granted a continuance, but the record showed that this court was justified in concluding that the matters of testimony expected from the absent witness were not such as could have afforded any justification to the accused for killing the deceased under any “claim of self-defense based upon threats, the motion for rehearing is denied.</p>