
    (85 Tex. Cr. R. 254)
    MASON v. STATE.
    (No. 5131.)
    (Court of Criminal Appeals of Texas.
    April 30, 1919.)
    1. Criminal Law <S=^603(2)^Continuance— Absent Witnesses — Sufficiency of Application.
    In view of Yernon’s Ann. Code Cr. Proe. 1916, art. 608, application for continuance on ground of absence of witnesses was properly denied, where application, stating that witnesses for whom subpoenas had been issued were without the state, did not state when or how information as to their absence reached defendant, nor when subpoenas were sent to the respective counties to which issued, nor by whom sent, if at all, and where subpoenas were not attached or in evidence, nor accounted for in any way, and no showing is made as to when the witnesses left the state nor that they had been or were recently in the counties in which subpoenas were issued.
    2. Criminal Law <®=3Q83(1)^Homicide <©=» 214(1) — Dying Declarations. ,
    In homicide prosecution, evidence that deceased, prior to his death, knowing that he could not live, told witness “about the condition of his wife. He told me a few things. He wanted me to look after his family” — was admissible as tending to show deceased’s mental condition at time of making statement and to rebut defendant’s contention that he did not know what he was talking about at such time.
    
      3. Homicide <©=>203(7) — Evidence — Dying ' Declaration.
    Statements of deceased shortly before death are admissible as dying declarations, where it clearly appears that he was aware of his physical condition, and did not believe that he could live.
    4. Criminal Law <©=>388 — Admissibility of Evidence — Experiment.
    In homicide prosecution, where witness had testified on the examining trial to have seen' killing from her yard, and where defendant had testified that after such testimony he went to place of killing, and from such place could not observe premises of such witness except top of house, evidence of a test made by another witness under the direction of such eyewitness, made at same time of day as the killing, and that by such tost witness was able to see place of killing from eyewitness’ yard, was admissible.
    5. Homicide <©=>340(4) — Appeal—Harmless Error — Instruction.
    In homicide prosecution, court’s failure to charge on assault to murder was harmless, where defendant was convicted of manslaughter, since jury by such conviction showed its disagreement with theory that there was malice ■aforethought, which is an essential element of assault to murder.
    6. Homicide <©=>199 — Manslaughter — Instructions.
    In homicide prosecution, jury could consider, not only what occurred on day of homicide, but also what preceded that day, upon question of whether there was sufficient and adequate cause to reduce the homicide to manslaughter.
    7. Homicide <$=>340(4) — Review—Harmless Error — Instructions.
    In homicide prosecution, court’s error in limiting jury’s consideration to what occurred on day of homicide upon question of whether there was sufficient cause to reduce the homicide to manslaughter was harmless, where defendant was convicted of only manslaughter and given the lowest punishment therefor.
    8. Homicide <©=>307(1) — Instructions—Aggravated Assault — Provoking of Difficulty.
    In homicide prosecution, where there was evidence raising the question of provoking the difficulty, court in charging on aggravated assault properly instructed jury that if the killing was under sudden passion, without intent to kill, with weapon not reasonably calculated to inflict death or serious bodily injury, and defendant had not provoked difficulty and was not justified, he would be guilty of no higher offense than aggravated assault.
    9. Homicide <©=>340(4) — Review—Harmless Error — Instruction.
    In homicide prosecution, instruction authorizing conviction of aggravated assault when testimony raised self-defense and justification was harmless, where defendant was not convicted of aggravated assault.
    10. Homicide <©=>271 — Question for Jury-Sudden. Passion^Credibility of Defendant.
    In homicide prosecution, the truth or falsity of defendant’s testimony raising issue of whether he acted under immediate influence of sudden passion is a question for the jury, under appropriate instructions, and not for the trial court.
    11. Homicide <©=>332(4) — Review—Credibility of Witness.
    In homicide prosecution, the truth or falsity of defendant’s testimony raising issue of whether he acted under immediate influence of sudden passion is not a question for the appellate court, but was for the jury.
    12. Homicide <©=>307(2) — Instructions—Degree of Offense — ¡Influence of Sudden Passion — Falsity of Testimony.
    The probability of defendant’s testimony raising issue of whether he was acting under the immediate influence of sudden passion being false does not justify court’s failure to instruct that defendant cannot be convicted of homicide, but may be prosecuted and convicted for assault and battery, where homicide is under influence of sudden passion, without intent to kill, by means not calculated to produce death, under Pen. Code 1911, art. 1149.
    13. Homicide <©=>307(1) — Instructions—Degree of Offense — Influence of Sudden Passion.
    In homicide prosecution, where' defendant had given testimony raising issue of whether he had acted under immediate influence of sudden passion, court’s instruction under Pen. Code 1911, art. 1149, as to reduction of offense to aggravated assault held fatally defective because of omission to charge that where deadly weapon was not used and blow resulted from uncontrolled passion or excitement, defendant was not guilty of higher offense than aggravated assault.
    Appeal from District Court, Floyd County; R. C. Joiner, Judge.
    Grady Mason was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    B. B. Greenwood, of Breckenridge, Kenneth Bain, of Floydada, and Frank Ford, of Decatur, for appellant.
    Kinder & Russell and A. B. Martin, all of Plainview, T. F. Houghton, of Floydada, A. J. Fires, of Childress, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Floyd county for the offense of manslaughter, and his punishment fixed at confinement in the penitentiary for a period of two years.

Appellant was indicted on March 6, 1918, for the murder of Elder Morris, was arrested on the same day, and his case shortly thereafter set for trial on March 25th. On March 9th he caused two subpoenas to be issued, one to Potter county for J. J. Gordon, and one to Wise county for Y. M. Mason. On the 19th of said month he also had a subpoena issued to Bexar county for Hubert Bartlett. None of said witnesses were.served with process, and none were present when the case was called for trial, and a continuance was ashed on account of their absence. The application does not state what said Bartlett would testify. Both Gordon and Mason were stated in said application to be out of the state at the time of the making of said application. When or how the information as to their absence reached appellant is not stated, nor is it shown when said subpoenas were sent to the respective counties to which issued; nor is it shown by whom the same were sent, if at all. Said subpoenas were not attached or in evidence, nor accounted for in any way. No showing is made as to when said witnesses left the state, nor that they had been, or were recently, in the counties to which the subpoenas were issued.

Authorities without number might be cited to sustain the rulings of this court to the effect that when an application is because of absent witnesses, it must be shown that process was promptly procured, and what was done with same, to whom, and when, same was delivered, and if to another county, the manner and time of its transmission must be shown, etc. For authorities on these points, see article 608, Vernon’s O. 0. P., and citations. There was no error in overruling said application for a continuance.

The brother of deceased testified to a declaration made by the deceased prior to his death, a part of which statement was as follows:

“He told me about the condition of his wife. He told me a few things. He wanted me to look after his family.”

This was objected to by appellant as inflammatory, prejudicial, immaterial, and hearsay. The court approved the bill with the explanation that appellant was contending at the time the entire statement was made, of which that quoted and objected to was only a part, that deceased was in a semi-, comatose condition, and did not realize what he was saying. The trial court was of opinion that the circumstances surrounding deceased at the.time were of such character as that said quoted statement showed, and tended to show, that he fully realized the condition of his wife and family, and therefore tended to show his mental condition in making the entire statement. It appears from the record that at the time of4 this trial, a few months after the killing, the wife of the deceased was placed on .the witness stand, and that her pregnant condition was plainly visible to the jury. The evidence objected to was not imflammatory, and in our opinion was admissible as rebutting appellant’s contention that thp deceased did not know what he was talking about. The statement in full clearly showed that the deceased was aware of .his physical condition, and did not believe he could live, and the same came clearly within our rules as to dying declarations.

Objection was made to the testimony of the state witness Gound, who went with the wife of deceased and other parties to the scene of the killing afterward, and testified that from the place where Mrs. Morris located the difficulty the Morris home and premises were plainly visible, and that from the Morris home and yard the place, near the appellant’s home, • where Mrs. Morris had located the difficulty,, was plainly visible. The court’s explanation of this bill shows that appellant had testified that, after hearing Mrs. Morris state on the examining trial that she was in her yard and saw all the fatal difficulty, he then went to the place of the difficulty, and from there he observed that none of the Morris premises but the top of the house were visible. The trial court was of the opinion that the test made by the witness Gound was admissible to meet this testimony of appellant. It appears that the test was made under the direction of an eyewitness to the difficulty, and was made at about the same time of day as that of the killing, and we think the admission of the same was not o hi action able. Schauer v. State, 60 S. W. 251; Coffman v. State, 73 Tex. Cr. R. 295, 165 S. W. 939; Brown v. State, 74 Tex. Cr. R. 356, 169 S. W. 437; Wilson v. State, 36 S. W. 587; Clark v. State, 38 Tex. Cr. R. 30, 40 S. W. 992.

We find nothing in the Harris Case, 62 Tex. Cr. R. 235, 137 S. W. 375, or in the Faulkner Case, 43 Tex. Cr. R. 311, 65 S. W. 1093, cited by appellant, which holds to the contrary.

Complaint is made because the- trial court failed to charge on assault to murder. The ground of said complaint in the application is that the wound inflicted upon deceased was not necessarily fatal, nor was the deceased given proper medical treatment. Appellant was only convicted of manslaughter, which clearly showed the jury’s disagreement with any theory that what he did was with malice aforethought, which is an essential element of assault to murder. This being true, we wholly fail, to see what benefit could have accrued to the appellant from the charge to the jury on assault to murder, or how he could be injured by a failure to so charge. In the cases cited by appellant in support of this contention, the convictions were had of grades of homicide higher than manslaughter, so that a reason existed for holding that it was erroneous not to charge upon assault to murder, but such is not the case here.

It was also insisted that the trial court erred in his charge on manslaughter in limiting the Jury’s consideration to- two facts as adequate causes, and that the jury should have been given the right to consider, not only what occurred on the day of the homicide, but also what preceded that day, in order to determine whether there existed sufficient and adequate cause to reduce the homicide to manslaughter. This is set forth in appellant’s sixth assignment of error. ,We are in accord with the law as contended for by appellant on this point, but, the jury having found the appellant guilty of only manslaughter and having assessed the lowest punishment therefor, we must confess that we do not see just how appellant could have benefited if a dozen adequate causes had been submitted by the court, or if the court had permitted them to consider everything that had taken place between the parties for two years past. Manslaughter is manslaughter, whether arrived at solely because of one insulting epithet, or as a result of a long course of aggravation. The charge seems not to allow as much latitude in regard to causes that the jury are permitted to consider as is now allowed by the authorities, but in view of the verdict the error is wholly harmless.

We do not think the court’s charge on aggravated assault open to the criticism that the same should have been given without any reference to provoking the difficulty and free from any charge on the question of self-defense. Provoking the difficulty appears to have been raised by the evidence, and in such case is applicable to each grade of the assault, if any, and it was proper for the court to tell the jury that if appellant struck and killed deceased without intention to kill, and under sudden passion, and with a weapon not reasonably calculated to inflict death or serious bodily injury, and that the same occurred under circumstances in which the appellant had not provoked the difficulty, and was not justified, then he would be guilty of no higher offense than aggravated assault.

Complaint is also made of paragraph 26⅛ of the court’s charge because same authorizes a conviction of aggravated assault when the testimony raises self-defense and justification. A sufficient reply to this would be that appellant was not convicted of aggravated assault, in which event only this could have been harmful, if erroneous.

An inspection of the record shows that the testimony of the appellant while on the witness stand raised the issue of whether he acted under the immediate influence of sudden passion. The truth or falsity of such testimony is not for the trial court or this court to pass upon, but is a question for the jury under appropriate, instructions. Appellant swore that the deceased called him out to where he was and used opprobrious epithets to him and jumped out of his wagon and started at him with a hammer. He says:

“I was excited during the difficulty and did not know really anything that passed. I was excited; I never had a fight with a man before.”

None of this testimony may be true, but that fact would not justify a failure to give any charge on the law applicable to such testimony. Our statute (article 1149, P. O.) is as follows:

“Where a homicide occurs under the -influence of sudden passion, but by the use of means not in their nature calculated to produce death, the person killing is not deemed guilty of the homicide, unless it appear that there was an intention to kill, but the party from whose act the death resulted, may be prosecuted for and convicted of any grade of assault and battery.”
The court’s charge applying the law of manslaughter is as follows:
“You are instructed that if you find and believe from the evidence, beyond a reasonable doubt, that the defendant did strike and kill the deceased, but at said time had no intention to kill the deceased, and that the defendant had not provoked the difficulty that resulted in the death of the deceased, or by Ms own wrongful acts had produced the necessity for taking the life of the deceased, and that in making the assault upon the deceased he was not justifiable as hereinbefore explained to you, then, in that event, he would not be guilty of a higher offense than that of aggravated assault.”

This charge of the court omits two important factors which might, if the jury believed them to exist, reduce the offense to aggravated assault, to wit, the use of a weapon not deadly in character; and the fact that the blow might have resulted from uncontrollable passion or excitement. Failure of the court to charge the law applicable to a striking under sudden passion and with an instrument not calculated to produce death was excepted to and a special charge asked containing two said omitted elements which might have reduced the offense to aggravated assault. This was sufficient to have called the court’s attention to the error. The evidence showed that the instrument used was a wooden sucker rod with an iron piece in the end. Both questions, to wit, the deadly character of the instrument and the fatal nature of the blow, were raised by the evidence as well as the mental condition of the appellant at the time of the difficulty, and we think the court should have given the substance of article 1149, P. C., to the jury. Thompson v. State, 24 Tex. App. 383, 6 S. W. 296; Johnson v. State, 42 Tex. Cr. R. 377, 60 S. W. 48; Pool v. State, 62 Tex. Cr. R. 360, 137 S. W. 666; Reeves v. State, 74 Tex. Cr. R. 503, 168 S. W. 860; Danforth v. State, 44 Tex. Cr. R. 105, 69 S. W. 159; Fitch v. State, 37 Tex. Cr. R. 500, 36 S. W. 584.

For the error indicated, the judgment of the lower court is reversed, and the cause remanded for another trial. 
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