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of the court in proceeding the same. The de- 15. WITNESSES 376-CROSS-EXAMINATION fendant could not avail himself in the criminal -DIRECT EXAMINATION. trial of any admissions of the plaintiff in the civil action, and, on the other hand, the jury in the civil action must decide upon the mere preponderance of the evidence, whereas in a criminal conviction they must be satisfied as to a party's guilt beyond a reasonable doubt. The same principles render a judgment in a civil action inadmissible in a criminal prosecution" (citing authorities).

We do not deem it necessary to discuss more particularly all the bills in regard to this matter, as the above general expression will indicate to the trial court what testi

Where a state's witness testified that accused committed the crime charged, and on cross-examination accused sought to show that the witness was taking an active interest in the case, it was not reversible error for the court to permit the state on redirect examination to show that the witness was interested in the case because accused had shot the witness.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 836-839, 841, 843; Dec. Dig. 376.]

6. CRIMINAL LAW 11661⁄2 REMARKS OF PRESIDING JUDGE. Where the court, in overruling an objecmony is admissible. The judgment of the tion to a question asked a witness, stated that civil court has no binding effect upon the the evidence to be elicited was admissible to criminal court, and should not be admitted. show motive of the witness, but on the request In other bills appellant complains of ques-ther the question or the answer, the remark of of accused directed the jury not to consider eitions propounded by the trial judge, and re- the court was not reversible error. marks made by him during the trial of the case. We are satisfied this will not occur on another trial, and therefore do not deem it necessary to discuss the bills presenting this matter.

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2. CRIMINAL LAW 925 NEW TRIAL
GROUNDS-MISCONDUCT OF JURORS.
That the jurors during the trial discussed
accused's conduct in walking across the court-
room in an awkward, uncouth manner during
the trial, and in laughing and smiling at jurors
in such a way as to call forth a discussion by
the jurors, was not ground for new trial in the
absence of any showing that accused was not
guilty of the conduct commented on by the
jurors.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2238-2247, 2250; Dec. Dig. 925.]

3. CRIMINAL LAW 956 NEW TRIAL GROUNDS-MISCONDUCT OF JURORS.

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That a juror, after the conviction of accused, stated to his counsel that half of the jurors said that, but for facts injected into the case as to the shooting by accused of a third person, accused would have been acquitted, unaccompanied by any affidavit of accused's counsel or of the juror, did not justify granting a new trial.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. 11662.]

Appeal from District Court, Anderson County; John S. Prince, Judge.

Hugh Word was convicted of murder, and he appeals. Affirmed.

J. E. Rose, of Palestine, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J. Appellant was convicted of assault to murder, and his punishment assessed at five years' confinement in the penitentiary.

[1] Appellant contends that the court should have continued the cause for the following reasons: Appellant was in jail, and had two criminal charges against him. Appellant's counsel states that in a conversation with the court and the district attorney the court had stated he would call the firstnumbered case for trial, and if appellant was acquitted in that case, and would make bond in the second case, it could be continued. The court says that all that was said was:

case, and would make bond, he would not re"If appellant was not convicted in the first quire so strict a showing, but, if no bond was made, he would not leave him in jail untried, unless a strict showing for continuance was made."

Appellant was acquitted of the first offense on July 1st. On the 2d of July the court states: He called this case for trial in the morning. Appellant's counsel not being present, he had him called, and sent men to search for [Ed. Note. For other cases, see Criminal him. Not being able to locate appellant's Law, Cent. Dig. §§ 2273-2391; Dec. Dig. counsel, he postponed the case until 2:30 956.]

4. CRIMINAL LAW 1111-BILL OF EXCEP-
TIONS-BYSTANDERS' BILL.
Where a bill of exceptions as qualified by
the court and a bystander's bill are filed, the
court must consider the questions raised by the
bystander's bill.

in the afternoon. At that hour he again called the case for trial, and had the jurors take a seat in the jury box. That at this time appellant's counsel came in with a bond and asked that the case be continued. That he declined to do so unless a showing was

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2894-2896; Dec. Dig. made. All witnesses being present, and ap1111.] pellant not contending that he was depriv

ed of any testimony, the court did not err | times after he shot Mattie Word? Witness: in not granting a continuance.

[2] Appellant contends contends that the court should have granted a new trial because his counsel alleges that after the trial Mr. Ben D. Jackson, one of the jurors, stated in his presence and hearing that some of the jurors discussed the fact "that defendant would walk across the courtroom in a very awkward, uncouth manner during the progress of the trial; that he would laugh and smile at various members of the jury in such a way as to call forth a discussion of these facts." There is no allegation that appellant was not guilty of such conduct, and if he was guilty of it, and the jurors commented on it, it would present no ground for a new trial.

[3] Appellant's counsel also says that Mr. Jackson told him "that half of the jury said that, but for the facts injected into the trial relative to the shooting of Ira Swanson, defendant would have been acquitted." Appellant's counsel does not attach his affidavit that such an occurrence took place, nor does he attach the affidavit of Mr. Jackson. presented to us, we cannot say the court erred in the premises.

Ans. Yes. Defendant: We ask the court to instruct the jury not to consider either the question or the answer. Court: Yes; the jury will not consider either the question or the answer just put and answered by the witness."

It is thus seen that the question and answer were properly excluded at the time, and if the court did make the remark, and yet, when appellant's counsel requested the exclusion of the question and answer, promptly instructed the jury not to consider either, no error is shown.

After a careful consideration of each and every question presented by the record, we are of the opinion there is nothing presented that would justify a reversal of the case.

The judgment is affirmed.

MAY v. STATE. (No. 3726.) (Court of Criminal Appeals of Texas. Oct. 20, 1915. Rehearing Denied Nov. 24, 1915.) 1. CRIMINAL LAW 598 CONTINUANCE GROUNDS-DUE DILIGENCE. As

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In a prosecution for seduction, it was not error to refuse a continuance on the grounds of absence of witnesses, where it appeared that defendant was indicted in November, 1913, ar1915, and defendant did not attempt to subrested in February, 1915, and trial set for May, pœna the absent witness until the day before his trial, since, under such circumstances, defendant failed to show that he had exercised due diligence.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. 598.1

GROUNDS-AFFIDAVITS.

It was not error to refuse a continuance in

[4] Appellant also has a bill in the record in which he complains Ira Swanson, a witness for the state, on redirect examination, was asked the following question: "Isn't the reason that you are interested in this case is because that Hugh Word shot you four times because you were a witness against him in this trial?" Appellant says that before he could object the witness re-2. CRIMINAL LAW608 CONTINUANCE plied, "Yes;" that appellant did then and there object and except to such question and answer, when the court remarked: "I think it admissible to show motive." The court says he made no such remark, and, as qualified by him, would certainly present no error, but appellant, while filing the bill as qualified, also filed a bystander's bill, and the witnesses testify that the court did make Since a continuance in a criminal case is the remark, and prove up the bill as pre-discretion of the trial court, it was not error to not a matter of right, but is within the sound sented by appellant; consequently we must refuse a continuance and to overrule a motion consider it. for new trial as soon as filed, where defendant had two days after the verdict in which he could secure the affidavits of absent witnesses. Law, Cent. Dig. §§ 2373-2391; Dec. Dig. [Ed. Note.-For other cases, see Criminal 956.]

[5] The witness Ira Swanson was one of the witnesses for the state who testified that appellant shot Mattie Word, his former wife. In cross-examination of the witness appellant had sought to show that the witness was taking an active interest in the prosecution, and was therefore calculated to be biased in his testimony; and under such circumstances, if the proceedings took place, as contended in the bystander's bill, it would present no reversible error.

[6] However, we will add here that, in addition to this bystander's bill, appellant, in the record, filed the stenographer's report, and in it appears the following:

"State: Isn't it because you are interested in this case is that this same negro shot you four

prosecution for seduction, where defendant failed to produce any affidavits that the absent witnesses would testify as stated in his motion. Law, Cent. Dig. §§ 1350, 1364-1368; Dec. Dig. [Ed. Note. For other cases, see Criminal mm 608.]

3. CRIMINAL LAW -956- CONTINUANCE

DISCRETION.

Appeal from District Court, Callahan
County; Thomas L. Blanton, Judge.
Will P. May was convicted of seduction,
and he appeals. Affirmed.

Critz & Woodard, of Coleman, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J. Appellant was indicted, charged with seduction, and when tried was convicted, and his punishment assessed at two years' confinement in the penitentiary.

would so testify; no affidavit of the person who told him in a casual conversation they would so testify is attached, stating they would so testify. So it is made apparent that appellant did not know they would so testify, does not state they would so testify, but states specifically he merely has been so informed, in a casual conversation, without giving the name of his informant. This is too vague and indefinite. In fact, the attendance of one of the witnesses whom he says he was informed in the casual conversation would testify that the reputation of Miss Quillin for virtue and chastity was bad was secured, and he refused and failed to so testify, thus evidencing that the information appellant received in the casual conversation was not very reliable.

[1] Appellant's counsel in his brief and oral argument before this court admitted that none of the bills of exception in the record as qualified by the court, present error, unless it be the one in which he excepted to the action of the court in overruling his first application for a continuHe earnestly insists that this bill presents error, and has filed an able brief on that question alone, and if diligence was shown and an allegation that the witnesses would testify as stated, perhaps it would present error. But does the application show that diligence required under the law? Appellant admits he and Miss Effie Quillin had several acts of carnal intercourse in July and August, 1912. They both fix the first date as July 5, 1912, and that the last act was perhaps the latter part of August, [3] Appellant says the trial court overruled 1912, when appellant left Callahan county. his motion for a new trial as soon as filed, By the testimony of both of them it is rea- and he had no opportunity to secure the sonably certain that he is the father of her affidavits of the witnesses. He had two baby, born May 7, 1913. The grand jury of whole days after verdict in which to file a Callahan county indicted appellant Novem- motion for a new trial, and if he had taken ber 13, 1913. The sheriff of Callahan county this time, if the witnesses were in the coundid not locate appellant until in February, ty, he could have secured the affidavits, if 1915, when he was arrested in Coleman coun- they would so testify, before filing his moty, and gave bond for his appearance in court tion. Or if he had not the means to make the in Callahan county in May, 1915. While trip, he could, in his motion, have set up the state contends he was a fugitive from that fact, and asked that process be issued justice, appellant contends that he had nev- for the witnesses, and that they be heard er been out of the state, did not know he on the motion. Had he done this, doubtless had been indicted until he was arrested, the court would have granted such prayer, and was not then and had not been avoid- or if the court had not done so, it would ing arrest. And it may be that his conten- have shown an effort on the part of appeltion is correct. But it is apparent he was lant and faith in what he had been informed arrested in February, and while he says he in the casual conversation they would tesdid not then know he was indicted, and tify. He did not do this, and we have no inthought that only a complaint had been fil- formation they would so testify if a new ed against him, the slightest diligence would trial was granted. Appellant does not prehave disclosed that an indictment had been tend to know that they would do so, and apreturned by the grand jury and was pend-parently does not know the name of the pering against him. In fact, the bond he sign- son who informed him the witnesses would ed would have so informed him if he had so testify, because he does not give it in his read it. Notwithstanding he was arrested application for a continuance, nor in the in February, he apparently made no prepara-motion for a new trial. If there was any tion for his trial until he went to Callahan county in May, and did not have the subpoena issued for the absent witness until the evening before his case was called for trial next morning. It is true he says he was not made aware of the facts he expects to prove by the witnesses until that day, but if he had used any diligence or effort, is it not reasonable to presume that he could have ascertained such facts earlier if he had tried? At least the record does not disclose any effort on his part to learn about such testimony or wit

nesses.

[2] Again he does not pretend to have any personal knowledge that the witnesses would testify to the facts he states. He says some one informed him that the witnesses would so testify in a casual conversation, without giving the name of his informant. Attached to his motion for a new trial is no affidavit

evidence that the witnesses would so testify, there would be merit perhaps in appellant's contention, but as the record presents the question, it is too indefinite for us to hold that the trial court abused his discretion in overruling the application for continuance, and the motion for new trial based on that ground. A continuance is no longer, under our law, a matter of right, but is addressed to the sound discretion of the trial judge; and, when we are asked to review this discretion, it ought to be made apparent by the record that the witnesses would testify as alleged, or at least that appellant had good reason to believe that they would so testify. The materiality of the testimony is not questioned, for if the witnesses would so testify, the testimony would be upon a material issue in the case, but the record discloses that appellant does not know they would so testify,

person whom he casually met, and the affida- [casion when Will Williams bought the whisvit of such person is not attached to the motion.

The judgment is affirmed.

BRICE v. STATE. (No. 3784.) (Court of Criminal Appeals of Texas. Nov. 3, 1915.)

1. CRIMINAL LAW 535-EVIDENCE-CONFESSIONS-CORPUS DELICTI.

While the confession of an accused may be used where the corpus delicti is established, yet it is inadmissible to establish the corpus delicti.

ky, a paper box that would carry twelve bottles of whisky. It is not stated, however, that there were twelve bottles in it at the time that Williams bought this whisky. Williams testified that he did not see any other whisky there at the time he bought it. He says there was a box there, but he did not see any whisky. All that he saw was a pint of whisky that he bought of defendant for which he paid 75 cents. The sheriff testified that he recovered or came in possession of some intoxicating liquors in a pasteboard box, a twelve-quart case. This was on the 31st of May, and he found this whisky or got it at

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 1225, 1226; Dec. Dig. the old jail wagon yard in Clarksville, and 535.]

2. INTOXICATING LIQUORS 236-OFFENSES -PURSUING BUSINESS OF SELLING INTOXI

CANTS.

To warrant a conviction of pursuing the business of selling intoxicating liquor in local option territory, the state must prove at least two sales.

his recollection was that there were five quarts of whisky in the box, and some old whisky glasses. This witness does not connect the defendant with that pasteboard box, nor does he undertake to do so. It may or not have belonged to appellant. The confession made to Mr. Lipscomb was to the effect that appellant got a shipment of twelve quarts of whisky on 31st of May, and dis3. INTOXICATING LIQUORS posed of all but five; that he "sold Will -BUSINESS OF SELLING INTOXICANTS IN Williams one pint of the whisky; and let LOCAL OPTION TERRITORY.

[Ed. Note-For other cases, see Intoxicating Liquors, Cent. Dig. §§ 300-322; Dec. Dig. m 236.]

236-OFFENSES

In a prosecution for pursuing the business of selling intoxicating liquors in local option territory, evidence held insufficient to warrant a conviction.

J. T. Kilgore have one pint of the whisky; and Collier Hemingway got one quart of the whisky; and Rufus Davis got one quart of the whisky; and I sold three or four [Ed. Note.-For other cases, see Intoxicating other different parties one quart each of the Liquors, Cent. Dig. §§ 300-322; Dec. Dig. whisky. I didn't know the parties to whom

236.]

Appeal from District Court, Red River County; Ben H. Denton, Judge.

J. Brice was convicted of pursuing the occupation of selling intoxicating liquors in local option territory, and he appeals. Reversed and remanded.

Travis T. Thompson, of Clarksville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

DAVIDSON, J. Appellant was convicted of pursuing the occupation of selling intoxicating liquors in local option territory, his punishment being assessed at two years' confinement in the penitentiary.

The indictment, after alleging the pursuing of the business, set out the names of two parties to whom sales were made, to wit, Will Williams and J. T. Kilgore. Proof is reasonably certain as to the sale to Williams. Kilgore was not produced as a witness. Appellant made a confession to the district attorney after he had testified before the grand jury. The confession may be treated as indicating that he had sold whisky to J. T. Kilgore. It is rather indefinite. He also He also mentioned the names of two other parties who were not named in the indictment. This is the state's case outside of the fact that defendant is shown to have been connected with a shipment of whisky, by one of the witnesses; that is, that he had, on the oc

I sold."

[1-3] Now this confession does not aid the state particularly in its case, even if it was admissible testimony. The confession of a defendant may be used where corpus delicti is shown to connect the defendant or party making the confession with that corpus delicti, and it has been held that the confession may be used to aid in making out the corpus delicti, as in the Kugadt Case, 38 Tex. Cr. R. 694, 44 S. W. 989, and for other authorities see Branch's Crim. Law, § 235. It has been held that the confession alone cannot prove the crime. The corpus delicti must be proved, and the confession may be used to connect the party with it. This has been thoroughly settled in a numerous line of cases in Texas. Hill v. State, 11 Tex. App. 132, is one of the earlier cases. Confession alone is insufficient to support a conviction. See Branch's Crim. Law, § 235.

Take the confession of appellant out of the case, and there is no testimony to show that he sold whisky to anybody except Williams. The corpus delicti in this case is not shown until evidence of a sale has been shown by somebody. shown by somebody. The same may be said as to the other parties named in the confession. They, however, are not named in the indictment; but if they had been the state could not prove the corpus delicti or crime by the confession. There must be evidence independent of the confession. Such we un

as limiting his right to defend himself against they had formed a conspiracy to injure him. an attack of the decedent and others only if He also objected that the portion of the charge relative to an assault on defendant by decedent with his fist deprived defendant of any right to defend himself against an unlawful attack upon him by decedent alone. Held, that such charge was erroneous as indicated.

derstand to be the unbroken line of authority | ant contended that such charge was erroneous, in Texas. The Hill Case, supra, was followed in two cases reported in 40 Tex. Cr. R. (White v. State, 40 Tex. Cr. R. 370, 50 S. W. 705, and Sullivan v. State, 40 Tex. Cr. R. 639, 51 S. W. 375); also in one case in 50 Tex. Cr. R. (Dunlap v. State, 50 Tex. Cr. R. 504, 98 S. W. 845). We therefore are of opinion the state has not made out its case. The state must prove, not only the following of the business, but must prove at least two sales, and this must be done according to the rules of evidence and law, and as a prerequisite to that it must be shown that the party was following that business, and in pursuing that business made two sales; otherwise the state has not made a case.

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Where defendant shot and killed decedent when the latter attacked him, because, from his own viewpoint, he was in danger of death or serious bodily injury, he had a right to shoot until he relieved himself of the impending danger, whether other parties, friends of the decedent, had anything to do with the trouble or not, or whenever they came into the difficulty. [Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 158-163; Dec. Dig. 116.] 2. HOMICIDE 110-SELF-DEFENSE.

Where defendant, in a prosecution for manslaughter, was down, and decedent and his friends were beating him, when a pistol was fired, and defendant was shot, he had the right of self-defense to shoot to defend himself from the attack of all.

SELF-DEFENSE.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. 300.]

4. HOMICIDE 116-SELF-DEFENSE.
It is defendant's viewpoint, and not the
jury's, as they subsequently see a homicide,
from which the appearance of matters, as giving
defendant reasonable cause to believe that he
was in danger of injury, is to be estimated.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 158-163; Dec. Dig. 116.]

Appeal from District Court, Houston County; John S. Prince, Judge.

Dick Welborn was convicted of manslaughter, and he appeals. Reversed, and cause remanded.

C. McClain, John I. Moore, of Crockett, and N. B. Morris, of Palestine, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

DAVIDSON, J. Appellant was allotted four years in the penitentiary for manslaughter.

In a general way, without being prolix, the evidence shows that some 15 years or such matter before this unfortunate difficulty appellant was charged with killing the father of the deceased. For this he was acquitted, and on this trial he testified he did not kill the father of the deceased, Marshall English; that he did not even have a fight with him. The theory of the state was that, appel[Ed. Note.-For other cases, see Homicide, lant having been indicted for the killing of Cent. Dig. §§ 140-142; Dec. Dig. 110.] the father of Marshall English, and because 3. HOMICIDE 300-TRIAL-INSTRUCTION- perhaps he may have been guilty of that offense, he therefore wanted to kill, and did Defendant was convicted of manslaughter. kill, Marshall English. A Mr. Pluncket was His evidence tended to show that since he had teaching a singing school in the community been charged with killing decedent's father some years before there had been bad blood between where the Englishes resided, and also in him and decedent, and that, when he attended a the community where the defendant resided. singing school, decedent, while walking by him, These places were something like seven miles struck him in the face, precipitating a fight, in which decedent's friends joined, rendering it apart. Just before the killing Pluncket was necessary for defendant to shoot in self-defense. in defendant's community, and invited the The state's evidence tended, on the contrary, people there generally, including the defendto show that defendant struck decedent in the ant and his family, to attend the singing face and shot him before he himself was attacked. The court charged in part that, if de- school in the English community on a parcedent and his friends had formed a conspiracy ticular day, which invitation defendant and to kill defendant, or seriously injure him, and his family accepted, and attended that meetbegan the difficulty, or if it reasonably appeared ing. It seems to have been the closing exerto defendant they were about to begin the difficulty, then defendant had the right to make cises of that singing school. There were the attack and kill the decedent, but that, if several members of the English family presthe decedent began the difficulty by assaulting ent at the time of the homicide, but were not defendant with his fist, and defendant shot him before any one else interfered he was guilty of members of either singing school, nor had manslaughter, while if friends, acting with they attended either. When appellant was decedent, attacked defendant, or, from his stand- on his way to the singing school, where the point, it reasonably appeared to him that they were about to attack him, and in view of all difficulty occurred, there is evidence tending the circumstances, including decedent's assault, to show that one of the English boys saw aphe killed decedent, he was not guilty. Defend- pellant and his family. The singing school

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