
    HARRIS v. STATE.
    (No. 9294.)
    (Court of Criminal Appeals of Texas.
    June 3, 1925.
    Rehearing Denied June 24, 1925.)
    I.Criminal law 3=598(2) — Diligence held exercised to obtain material witnesses.
    Where accused, a stranger and a negro, without counsel and in jail in another county, prior to indictment, nine days before trial, had subpmna issued for material witnesses as soon as indicted, and made efforts to locate them, but only succeeded in finding them in another state two days before trial, due diligence was exercised, so as. to require continuance.
    2. Criminal law 3=595(1) — Testimony of absent witnesses held material.
    Expected testimony of absent witnesses as to statements of accused about two minutes after shooting concerning his lack of intention to shoot, and their advice that he leave the vicinity to avoid causing trouble for other ne-groes, 'held in part res gestas, so as to justify continuance.
    3. Criminal law <§=450 — Testimony properly excluded as opinion on main issue.
    It was not error to exclude testimony of eyewitness that discharge of pistol was accidental as witness would thereby have given his opinion on the main issue, which the jury alone should decide.
    4. Criminal law 3=805(2) — Instruction to assess punishment for murder, unless accused found not guilty, held objectionable.
    Where, on a trial for murder, defense claimed that the shooting was accidental, that part of court’s charge on murder as to assessing punishment, “unless you find the defendant not guilty under instructions hereinafter given you,” was objectionable.
    5. Homicide 3=295(2) — Instruction on passion and provocation held erroneous, as not applying law to facts of the case.
    Where deceased was shot after deciding a controversy between accused' and a companion, who it was claimed had threatened accused just previous, an instruction on manslaughter that passion 'arising from some other provocation, or a provocation given by another than the party killed, was not enough, held erroneous, as not applying the law to the facts in the case.
    6. Homicide-3=304 — Instruction directing acquittal, if pistol discharged accidentally was not drawn with intent to shoot, held erroneous.
    In a trial for ‘ murder, where the defense claimed the shooting was accidental, a charge directing acquittal “if at the time defendant drew his pistol he did so with no intent to shoot,” and it was discharged accidentally, was improper.
    7. Homicide 3=300(8) — Evidence held to require submission of issue of self-defense.
    In a trial for murder, where defense claimed deceased was accidentally shot after accused had drawn pistol in self-defense against- one who was wrongfully taking his money, calling him obscene names, and had threatened to hit him in the mouth, and who was more powerful physically, and liable to execute threats, held, that the issue of self-defense should have been submitted.
    8. Homicide 3=300(8) — Issue of self-defense, although defendant’s testimony is contradictory, for jury.
    Issue of self-defense should be submitted on defendant’s testimony, although other portions of such testimony disclose there is no-self-defense in the case.
    
      S. Criminal law <§=»772(6) — Defense should be presented in affirmative manner to jury.
    In -a trial for murder, trial court should present defense in an affirmative manner, so as to leave the jury untrammeled in passing ■on the issues.
    Commissioners’ Decision.
    Appeal from District Court, Ochiltree County; W. R. Ewing, Judge.
    Jake Harris was convicted of murder,'and he appeals.
    Reversed and remanded.
    E. J. Cussen and Hoover, Hoover &' Willis, all of Canadian, for appellant.
    Tom Garrard, State’s Atty.,. and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was indicted on the Sth day of November, 1924, in.the district court of Hemphill county, charged with murdering Clyde Williams on or about the 12th ■day of October, 1924, and on change of venue was tried in the district court of Ochiltree county November 17, 1924, and convicted on the 19th of November, 1924, of murder, and his punishment assessed at 20 years’ confinement in the penitentiary.

Briefly stated, the record discloses that the appellant is a negro and the deceased was a white man, and at the time of the homicide the appellant, deceased, and quite a number of negroes were constructing a bridge, in Hemphill county, and on the night of the homicide the appellant and O. C. Moore,, commonly called “Whitcchile,” became involved in a quarrel over a crap game, and the said Moore called in the deceased to settle the controversy, which the deceased decided in favor of said Moore, but said defendant and Moore continued in their quarrel over said game, and said Moore started to put the money in his pocket, when defendant pulled a pistol, which was fired and killed the deceased. The record discloses that, when the pistol was discharged, the witness Moore ran from the house where the playing was going on, with the defendant immediately after him, as well as nearly all of the entire occupants in said house and around said game.

It was1 the contention of the state that the defendant shot and killed the deceased on account of the decision made against him over the controversy in the crap game, while the defendant contended that he was on friendly terms with the deceased, and had been threatened by the witness Moore, and that he drew his gun for the purpose of frightening the witness Moore, and to keep him from taking the money, and that the gun was accidentally discharged which killed the deceased, and that he (defendant) did not know that he had shot the deceased until a few minutes later,, when he was informed by one Mansfield and one Dixon, a couple of negroes, to his great surprise, which he expressed to them, and that they advised him that, if he did not leave, the white people of the vicinity would resent it, and it would cause all the negroes working on the bridge to be involved, and on account of the fear of the defendant of the white people, and for the protection of the other negroes, he left the scene of the homicide, and was arrested at Amarillo thereafter, and was not brought back to Hemphill county until the 8th of November, 1924, at which time he was billed by the grand jury. The above statement of facts is sufficient as a basis for this opinion.

When this case was called for trial on the 17th of November, 1924, the record discloses that appellant made his first motion for continuance for want of the testimony of Buster Mansfield and Jim Dixon, alleging and showing that he had been confined in jail since his arrest and up to the time of the returning of the indictment on November 8, 1924, and that he was without the assistance of counsel until the said date, and that he was a stranger and a negro, and, owing to the excitement created by reason of his having shot the deceased, that he was kept in jail in a different county from the scene of the homicide for protection, and that he caused a subpoena to issue to Hemphill county as soon as he was indicted, for said witnesses, and that the sheriff had been unable to find them, and that he (the defendant) and his lawyers began at once to try to locate said witnesses, and had not learned of their location until the 15th of November, 1924, and that they were found to be in Lexington, Mo., and setting up in said motion for continuance that said witnesses had left the county of the homicide, and that he expected to prove by said witnesses the threats made by the prosecuting witness, Moore, against him, and that within about two minutes after the shooting said witnesses informed him of his having shot the deceased, and they would testify to his expressing surprise, and stating that he did not know that he had shot him, and did not intend to shoot him, nor intend to shoot anybody, and that he was advised by said witnesses to leave on account of the excitement, and that he further expected to show by said witnesses that the pistol in question was easy on trigger, and further expected to show by said witnesses that he stated that said pistol went off accidentally, and at the time of the homicide. that the defendant was directing all of his remarks to the prosecuting witness, Moore, and not to the deceased, and that he expected to obtain said testimony either by deposition, or have said witnesses present at the next term of court. The state’s contention being in part that the defendant fled from the scene of the homicide, which was a circumstance of guilt, the defendant stated in said application for continuance that he expected to show by the witnesses in rebuttal that it was on account of the advice that the witnesses gave him to leave, and the protection of the, other negroes and himself against mob violence, that caused him to leave.

The court overruled this motion for continuance, and the appellant upon the trial testified to the facts as abqve stated, and the prosecuting witness, Moore, also testified that within about two minutes after the shooting he saw the defendant talking to said absent witnesses on the outside of the building. The'failure of the court to grant the motion for continuance was also set up as a basis for new trial.

After a careful examination of this entire record, we are of the opinion that the defendant and his attorneys have shown due diligence in' an effort to secure this testimony, and same would be very material to the defendant’s defense in the case, and a portion of which would be res gestee, and the court was in error in overruling same. Mansell v. State (Tex. Cr. App.) 182 S. W. 1137; Covington v. State, 83 Tex. Cr. R. 22, 201 S. W. 179; Mickle v. State, 85 Tex. Cr. R. 560, 213 S. W. 665.

The appellant complains of the action of the court in bill of exceptions No. 2 in refusing to permit the witness Laurence, who was a witness to the homicide, and saw and heard all that was done and said up to the time of the shooting, to testify that the pistol was discharged accidentally, was the impression made upon him, based upon all the facts and circumstances of the case. In support of this contention, we are cited to the ease of Mason v. State, 79 Tex. Cr. R. 169, 183 S. W. 1153, and the Latham Case therein cited. This court criticized the principle laid down in both of those cases in the case of Dunne v. State, 263 S. W. 608. We are of the opinion that those 'cases are distinguishable from the instant case, in that the witnesses in those cases were called upon to state what impression the actions of the deceased had upon them at the time of the homicide, while in the instant case it was proposed to show by the witness Laurence, after the whole transaction was over and from all that he saw and heard, that it appeared to him that the fehooting was accidental. This proposed testimony would have permitted the witness to have given his opinion on the main issue in the case, which the jury alone should decide. We are of the opinion that there was no error in excluding this evidence.

The appellant complains of the action of-the court in the fifth paragraph of his charge on murder, and to the following portion of same:

«⅜ * * And assess his punishment at death, or confinement in the state penitentiary for some period of time of not less than five years, unless you find the defendant not guilty under instructions hereinafter given you.”

The vice alleged to be in said portion of said charge is that the court should have stated that, unless they believed from the eyidence that he acted in self-defense, or that the pistol was accidentally discharged, or that he was guilty of manslaughter. In other words, the- contention is that the jury would be misled, by that portion of ;the charge, and think that the court meant thereby that they would have to find the defendant guilty of murder, regardless of his defenses urged in this case, while the court informs the jury that they will find him guilty of murder “unless you find the defendant not guilty under instructions hereinafter given you.” We believe upon another trial the court should follow the form and the law as laid down by Judge Ramsey in the case of Best v. State, 58 Tex. Cr. R. 327, 125 S. W. 910, and Kincaid v. State, 65 Tex. Cr. R. 464, 145 S. W. 597.

There is- also complaint urged against the court’s charge, in paragraph 7 thereof, on manslaughter, wherein the court charges the jury:-

“That it is not enough that the mind is merely agitated by passion arising from some other provocation, or a provocation given by another, other than the party killed.”

The record in the case discloses without .controversy that the witness 0. O. Moore and the defendant were in a quarrel over money on the crap game, and had had some trouble just previous thereto over another gambling transaction, in which it is alleged that Moore had madq some threats against the defendant, and we think the contention of the appellant in this case, on the application of the court’s charge in this particular, and in confining it to the deceased alone, was error, and should have applied the law to the facts in this case. Wilson v. State, 70 Tex. Cr. R. 355, 156 S. W. 1185; Anderson v. State, 85 Tex. Cr. R. 422, 214 S. W. 353.

There is also complaint urged against paragraph 14a of the court’s charge, which is as follows:

“You are further charged that homicide is excusable when the death of a human being happens by accident. Therefore, if, at the time the defendant drew his' pistol, he did so with no intention to shoot the witness O. O. Moore (Whiteehile) or the deceased, Williams, and in drawing his pistol it was discharged accidentally or unintentionally, and thereby killed the deceased, Williams, or if you have a reasonable doubt thereof, you will' acquit the defendant, and say by your verdict, ‘Not guilty,’ ”

—because same limits the discharge of the pistol to an accidental shooting, while it is ■contended that, if he drew the pistol with intent to shoot but did not intentionally shoot same, and it went off accidentally, then he should be acquitted, and was entitled to a charge upon accidentally discharging of the pistol without any qualified statements thereto, and in keeping with said contention we are cited by the appellant to the case of McPeak v. State, 80 Tex. Cr. R. 50, 187 S. W. 756. We believe that the court, in view of said decision, should frame his charge in keeping with the law as laid down therein, upon another trial of this case.

It is also urged that the court erred in not charging the jury on the issue of self-defense. It appears from the record, as before stated, that the witness Moore and defendant had had some trouble over a prior game, in which it is alleged that the witness had threatened the defendant; and it is contended by the appellant that, just prior to the homicide, said Moore was wrongfully taking his (defendant’s) money, and refused to give it to him, and called him a son of a bitch, and threatened to' hit him in the mouth, when the defendant drew his gun to protect himself, and to prevent said Moore from taking his money off the table. The record also discloses that defendant was a one-armed negro, and that Moore was much more powerful physically than the defendant, and was liable to execute threats by him made. We believe that, in the condition that the record is presented to us, upon another trial this court should submit the issue of self-defense. We are not unmindful of the fact that the defendant testified that he did not intend to shoot anybody, but drew his pistol as a bluff; but, on the other hand, he testified that he drew it to protect himself, and as this court has heretofore held that, where the defendant testifies that he was. acting in self-defense, and other portions of his testimony indicate that there is no self-defense in the case, still it is a matter for the jury, and the court under such circumstances should submit the issue of the jury to pass upon. Collins v. State, 97 Tex. Cr. R. 31, 259 S. W. 941.

There are other complaints raised to the charge of the court, in that it does not affirmatively present the issues of the defendant in an untrammeled manner This court has held repeatedly that the trial court should present the defense in an affirmative manner, so, as to leave the jury untrammeled in passing upon the issues. McPeak v. State, 80 Tex. Cr. R. 50, 187 S. W. 756, supra. We suggest, upon another trial of this case on defensive issues, that the learned trial court frame his charge so as to follow the rule announced in the McPeak Case, supra.

Por the errors above discussed, we are of the opinion that the judgment of the trial court should be reversed and remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

Appellant has filed a request asking us to amplify our original opinion. It appears to us that same is plain, and sets forth that on another trial, if one should be had, the defense may not prove by witnesses other than appellant that it appeared to them that the pistol went off accidentally, nor that they deemed the shot a stray shot. As to the proposition that any witness may testify as to the direction a gun is pointed when it is fired, it would scarcely seem necessary for this court to .lay down any rule regarding so plain a matter. In, the Dunne Case, referred to in our original opinion, we discussed both the Latham and Mason Cases, and affirmed our view that they are not supported by the authorities, and we declined to follow them in any attempted application of the rule laid down. We do not think they have any application to the facts in the instant case. •

The motion of appellant will be denied. 
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