
    THOMAS v. STATE.
    (No. 4171.)
    (Court of Criminal Appeals of Texas.
    Oct. 11, 1916.
    Rehearing Denied Nov. 8, 1916.)
    1. Criminal Law @=>603(7) — Absence of Witnesses — Continuance.
    In a trial for murder, where several disinterested witnesses on each side who saw the difficulty and the killing were introduced, but defendant’s son and another eyewitness present in court were not offered, and defendant himself did not testify, his application for a continuance on the ground of the absence of a witness who saw the killing and deceased advancing in a threatening manner upon defendant, and defendant retreating, and who would testify that deceased was the aggressor, and of another witness expected to ■ show that deceased had more than once threatened defendant with serious bodily harm, and of another witness who saw the difficulty and heard deceased threaten to “fix defendant,” not attaching the affidavit of either of such witnesses as to what they would testify, or showing any reason for not doing so, in view of the improbability that such witnesses would testify as alleged, was properly denied.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1354; Dec. Dig. @=>603(7).]
    2. Criminal Law @=*594(1) — Appeal—Continuance — 'Waiver.
    Where defendant declined to postpone the conclusion of the trial until the arrival of one of such witnesses, and did not ask that the jury hear the testimony of such witness stated by him to the trial judge, he waived any right to have such witness testify.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1321; Dec. Dig. @=>594(1).]
    3. Criminal Law @=>586 — Discretion of Court — Continuance.
    Under the statute and the decisions, the first continuance is addressed to the sound discretion of the court, and “shall not be granted as a matter of right.”
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1311; Dec. Dig.- @=>586.]
    4. Criminal Law @=>961 — New Trial — Grounds — Absence of Witnesses.
    The court, after hearing the whole trial and all the evidence, on a motion for mew trial, must reconsider the motion for a continuance, and if he then concludes that the testimony of the absent witnesses was not material or that their claimed testimony was not probably true, may properly refuse the new trial.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2415 — 2417; Dee. Dig. ©=» 961.]
    5. Criminal Law ©=>595(4), 917(2) — Appeal— Discretion of Trial Court — Continuance.
    The court, on appeal, will not revise or reverse the judgment of the lower court refusing a continuance, and the overruling of a motion for a new trial based thereon, unless it appears from the evidence at the trial that the testimony of such absent witnesses was relevant, material, and probably true.
    [Éd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323, 2162; Dec. Dig. ©=>595(4), 917(2).]
    6. Criminal Law ©=>597(1) — Appeal—Continuance.
    The court, on appeal, .will not reverse for the refusal of a continuance, unless, in connection with the other evidence on the trial, it is convinced not merely that defendant might probably have been prejudiced thereby, but that it was reasonably probable that if the testimony of absent witnesses had been given, a more favorable verdict for defendant would have resulted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1331; Dec. Dig. ©=>597(1).]
    Appeal from District Court, Young County ; Wm. N. Bonner, Judge.
    J. B. Thomas was convicted of manslaughter, and he appeals.
    Affirmed.
    M. D. Brown, of New Castle, and Kay & Alrin, of Wichita Falls, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENiDERGAST, P. J.

Upon a trial under an indictment for murder, appellant was convicted of manslaughter, and assessed the lowest punishment.

We think the evidence as a whole, and especially that of appellant’s witness Estell Morrison, a little girl 10 years of age, raised the issue of mutual combat, and that the court did not err in submitting that issue. We see no necessity of making a statement of the testimony. It is amply sufficient to sustain the conviction.

The only bill of exceptions appellant has in the record is to the overruling of his motion for a icontinuance. His application therefor was on account of the absence of J. A. Davis and Robert Tunnel of Runnels county, and W. F. Banning of Tar-rant county. He alleged that Davis saw the killing, and saw the deceased advancing in an angry and threatening manner upon him, and that he was retreating and had been retreating up to and at the instant of the killing, and that he will testify to facts showing that deceased was the aggressor. By the witness Tunnel he claimed he expected to establish that deceased on more than one occasion had threatened defendant with serious bodily injury; by Banning, that he saw the difficulty and heard deceased say to appellant in his presence and hearing and just before the killing: “Damn you, I will just fix you now.”

The ■ record shows that there were introduced several wholly disinterested and unbiased witnesses on each side who saw the difficulty and killing — some of them right at the parties. It also shows that appellant had had subpoenaed, and there were in attendance upon the court during the trial his own son, a young boy ¡about 17 or 18 years old, and John Stone, both of whom were eyewitnesses to the fight and killing, but introduced neither of them. He did not himself testify. That before the judge overruled his motion for a continuance, the judge by phone communicated with the sheriff of Runnels county and learned "from him'that he had subpmnaed said Davis, and that Davis was on his way to attend the trial, and would reach there that night. That the witness Tunnel was sick and could not attend. That on the day of the trial, before it was concluded, the judge informed the appellant and his attorneys that the witness Davis would arrive in time to testify the next morning, and offered to postpone the conclusion of the trial until his arrival, so that he could testify, but appellant did not agree to this; so that the trial proceeded and went to the jury late that evening. That on the next morning the witness Davis appeared in court, whereupon while the jury was out and before it returned a verdict, the witness was summoned before the court to ascertain what his testimony would be. Appellant did not then ask that the jury be permitted to hear the witness’ testimony. In the court’s qualification to appellant’s bill, he attaches in question and answer form the statement of the testimony of said Davis heard at the time. In our opinion, as in the opinion of the trial judge, this did not bear out what appellant alleged in his motion he would testify. The court also states in this qualification, which is a fact as shown by the record, that no one testified to any threat of any kind having been made, and there was no intimation of any threat from any source. The witness Lanning was not procured, nor in any way heard from, so far as this record shows. The trial was had and the verdict and judgment rendered March 15th. Appellant filed a motion for a new trial on the same day, and an amended motion on March 20th. The state contested his motion on the ground of the overruling of his motion for a continuance, and the court heard and overruled it on March 30th. At no time did appellant attach the affidavit of either of said absent witnesses or show any reason why he did not do so, showing what they would testify.

Under the circumstances, the court did not err in overruling his motion for a continuance, nor, in overruling his motion for a new trial. Under the circumstances, he clearly waived any right to have said witness Davis testify. It is altogether improbable that the witness Tunnel would have testified to any threat, but, if so, the application does not show when and where nor under what circumstances the claimed threat was made, nor that it was communicated to appellant before he killed deceased! or that he knew anything about it, or that he had ever heard of it, nor that whatever the threat was, deceased did or said anything at the time to indicate that he was then attempting to execute any supposed threat. No intimation by any of the other eyewitnesses to the whole fight and killing indicated that deceased at the time said to appellant, “Damn you, I will just fix you now,” as it is claimed the absent witness Lanning would have testified. It is altogether improbable that he would have so testified. If such had been a fact, it seems that appellant would have introduced his son or witness Stone, or both, to have testified to the same.

It is the well-settled law of this state, both by statute and the decisions, that the first continuance is addressed to the sound discretion of the court, “and shall not be granted as a matter of right.” Then that the court, after hearing the whole trial and all the evidence on a motion for a new trial, shall reconsider the matter, and if he thereupon concludes that the evidence of the absent witnesses was not of a material character, or that their claimed testimony was not probably true, then he commits no error in refusing a new trial.

Judge White in his An. O. O. P. § 647, lays down the correct rule as follows:

“The court on appeal will not revise or reverse the judgment of the lower court refusing a continuance or postponement, and the overruling of the. motion for new trial based upon the application for continuance or postponement, unless it is made to appear by the evidence adduced at the trial that the proposed absent testimony was relevant, material, and probably true. Koller v. State, 36 Tex. Cr. R. 496 [38 S. W. 44]; Lindsey v. State, 35 Tex. Cr. R. 164 [32 S. W. 768]; Moseley v. State, 35 Tex. Cr. R. 210 [32 S. W. 1042]; Tate v. State, 35 Tex. Cr. R. 231 [33 S. W. 121]; McGrath v. State, 35 Tex. Cr. R. 413 [34 S. W. 127, 941]; Wilkins v. State, 35 Tex. Cr. R. 525 [34 S. W. 627]; Waul v. State, 33 Tex. Cr. R. 228 [26 S. W. 199]; King v. State, 34 Tex. Cr. R. 228 [29 S. W. 1086]; Cline v. State, 34 Tex. Cr. R. 415 [31 S. W. 175]; Wyley v. State, 34 Tex. Cr. R. 514 [31 S. W. 393]; Neel v. State, 33 Tex. Cr. R. 408 [26 S. W. 726]; Russell v. State, 33 Tex. Cr. R 424 [26 S. W. 990]; Shaw v. State, 32 Tex. Cr. R. 155 [22 S. W. 588]; Hyden v. State, 31 Tex. Cr. R. 401 [20 S. W. 764]; Brookin v. State, 26 [Tex.] App. 121 [9 S. W. 735]; Browning v. State, 26 [Tex.] App. 432 [9 S. W. 770]; Boyett v. State, 26 [Tex.] App. 689 [9 S. W. 275]; Brooks v. State, 24 [Tex.] App. 274 [5 S. W. 852]; Jackson v. State, 23 [Tex.] App. 183 [5 S. W. 371]; Hennessy v. State, 23 [Tex.] App. 340 [5 S. W. 215]; Covey v. State, 23 [Tex.] App. 388 [5 S. W. 283]; Rice v. State, 22 [Tex.] App. 654 [3 S. W. 791]; Miller v. State, 18 [Tex.] App. 232; Mathews v. State, 17 [Tex.] App. 472; Beatey v. State, 16 [Tex.] App. 421; Wooldridge v. State, 13 [Tex.] App. 443 [44 Am. Rep. 708]; Word v. State, 12 [Tex.] App. 174; Clampitt v. State, 9 [Tex.] App. 27; Dowdy v. State, 9 [Tex.] App. 292.”

In the next subdivision, he also lays down another correct rule as follows:

“The court on appeal will not reverse a judgment on account of the refusal of a postponement or continuance, unless in connection with the other evidence adduced on the trial they are impressed with the conviction not merely that the defendant might probably have been prejudiced in his rights by such ruling, but that it was reasonably probable that if the absent testimony had been before the jury a verdict more favorable to the defendant would have resulted. Land v. State, 34 Tex. Cr. R 330 [30 S. W. 788]; Gallagher v. State, 34 Tex. Cr. R. 306 [30 S. W. 557]; Easterwood v. State, 34 Tex. Cr. R. 400 [31 S. W. 294]; Sinclair v. State, 34 Tex. Cr. R. 453 [30 S. W. 1070]; Bluman v. State, 33 Tex. Cr. R. 43 [21 S. W. 1027, 26 S. W. 75]; Goldsmith v. State, 32 Tex. Cr. R. 112 [22 S. W. 405]; Hyden v. State, 31 Tex. Cr. R. 401 [20 S. W. 764]; Hammond v. State, 28 [Tex.] App. 413 [13 S. W. 605]; Frizzell v. State, 30 [Tex.] App. 42 [16 S. W. 751]; Pruitt v. State, 30 [Tex.] App. 156 [16 S. W. 773]; Ellis v. State, 30 [Tex.] App. 601 [18 S. W. 139]; Browning v. State, 26 [Tex.] App. 432 [9 S. W. 770]; Boyett v. State, 26 [Tex.] App. 689 [9 S. W. 275]; Covey v. State, 23 [Tex.] App. 388 [5 S. W. 283]; Self v. State, 28 [Tex.] App. 398 [13 S. W. 602]; Phelps v. State, 15 [Tex.] App. 45.”

See, also, on both propositions, Furnace v. State, 182 S. W. 457; Stacy v. State, 177 S. W. 118.

There is no other question raised in such a way that we can consider it.

The judgment is affirmed. 
      ,©=>17or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     