
    MANLEY v. STATE.
    (Court of Criminal Appeals of Texas.
    March 5, 1913.)
    1. Criminal Law (§ 614)—Application fob Continuance—Denial.
    The denial of a fourth application for a continuance for abenee of witnesses was not error, where two of the witnesses appeared and testified during the trial, and the testimony of a third was reproduced, and there was no showing of diligence as to the others, whose testimony would have been cumulative.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1312-1314;. Dec. Dig. § 614.]
    2. Militia (§ 20)—Offense by Members of National Guard—Trial—Jurisdiction.
    Where a member of the National Guard, while -on duty in time of peace, committed a capital offense by killing a citizen who insisted on passing a military line,-the courts of the state had jurisdiction to try the soldier therefor, both under authority conferred by Acts 29th Leg. e. 104, § 103, art. 30, and independent thereof; the state courts having first ob.tained jurisdiction before a military investigation was begun.
    [Ed. Note.—For other cases, see Militia, Cent. Dig. §§ 45-60; Dec. Dig. § 20.]
    3. Criminal Law (§ 1192)—Appeal — Reversal—Retrial—Law of the Case.
    A ruling on a former appeal that a portion of a dying declaration was inadmissible was the law of the case, and such portion was therefore properly excluded on retrial.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 3231-3240, 3243; Dec. Dig. § 1192.]
    4. Homicide (§ 309)—Offense of Soldier-Manslaughter.
    Where a member of the National Guard, while on duty in time of peace, bayoneted a citizen in an altercation with reference to permission to cross a military line, a request to charge that if deceased intended to enter the inclosure guarded by accused, or it so appeared to him, and he intentionally thrust deceased with a bayonet and killed him, his offense was manslaughter, was properly refused as eliminating adequate cause and sudden passion, essential elements of manslaughter.
    [Ed. Note.—For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    
      Appeal from District Court, Ellis County; P. L. Hawkins, Judge.
    J. D. Manley was convicted of second-degree murder, and he appeals.
    Affirmed.
    Albert Walker, of Dallas, Will Hancock, of Waxahaehie, and J. C. Muse, of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER'in Dec. Dig. & Am. Dig. Key-NO. Series & Rep’f indexes
    
   HARPER, J.

Appellant in this case was convicted of murder in the second degree, and bis punishment assessed at- 40 years’ confinement in the state penitentiary.

This is the second appeal; the opinion of the court on the former appeal being reported in 62 Tex. Cr. R. 392, 137 S. W. 1137.

It appears that the militia, acting under the direction of its superior officers, had roped or wired off a portion of certain streets in the city of Dallas, near the fair grounds, on the occasion of President Taft’s visit, and the militia were given instructions to prevent any person from entering the grounds so fenced off. Appellant was placed along this line, guarding a certain section of it. The state’s testimony would show that' deceased and a companion approached the wire and asked permission to cross, in order to catch a street car. Appellant refused them permission, when deceased called his attention to the fact that others were crossing, and insisted on being permitted to do so. Appellant replied he wanted “none of his lip,” and struck deceased on the shoulder with his gun, knocking his hat off. Deceased remarked something about this being a nice or pretty way for a soldier to act, stooping at the time to pick up his hat, when appellant plunged his bayonet clean through his body inflicting a death wound. Appellant, in his testimony, would have deceased cursing and attempting to force his way across the inclosure when he struck him, and he says he then brought his gun to a “charge bayonet position,” when, it becoming entangled on the wire, he attempted to get it loose, and in the effort to do so deceased was pushed or in some way was forced on the bayonet, and the killing was unintentional and accidental. Some witnesses for the appellant would have deceased, when he was hit on the shoulder, curse, step back, and throw his hand to his rear pocket, as if to draw a weapon, when appellant inflicted the fatal wound.

The witnesses for the state testify that the gun did not become entangled in the wire; that deceased made no demonstration as if to draw a weapon, but when he said that was a nice way for a soldier to act appellant deliberately plunged the bayonet into him, making a remark, when asked about it immediately thereafter, showing it an intentional act.

The first bill complains of the action of the court in overruling his fourth application for a continuance. The approval of the court shows that two of the witnesses named in the application appeared and testified during the trial; the testimony of a third was reproduced; and as to the other witnesses named we think the diligence insufficient in the main; and if sufficient as to some the testimony of those would be but cumulative of that adduced on the trial; and this being the fourth application for a continuance the court did not err.

The next bill shows that appellant filed a plea alleging that the courts of this state had no jurisdiction of the offense. The act under which the state militia, termed “National Guard,” is organized provides that the state courts shall have jurisdiction of offenses of this character. See section 103, art. 30, Acts 29th Leg. c. 104. But, exclusive of this article, when a soldier, in time of peace, commits an offense against the laws of a state, the courts of the state in which the offense is committed have jurisdiction of the offense. The offense charged against appellant was a capital ■ offense; the courts of this state first obtained jurisdiction, and under no theory of the law could it be deprived of that jurisdiction. The case relied on by appellant must be that of Grafton v. United States, 206 U. S. 348, 27 Sup. Ct. 749, 51 L. Ed. 1084, 11 Ann. Gas. 640; but even that case holds that in the character of case -charged against appellant the district courts of this state would have exclusive jurisdiction, having first obtained jurisdiction.

The appellant objected to what was claimed was the dying declaration of deceased being introduced in evidence, and under such circumstances there was no error in the court permitting evidence to be introduced to show that he, by his acts, words, and conduct, demonstrated that he was sane, in full possession of his mental faculties, and knew and appreciated the fact that he was in a dying condition, and entertained no hope of recovery. Neither was there error in admitting the statement in evidence. It reads: “St. Paul Sanitarium, Dallas, Texas, October 23, 1909. I, - Louis Reichen-stein, now realizing that I am probably at the point of death, declare that I was stabbed by one of the soldiers at the fair grounds to-day. * * * I asked the soldier to permit me to cross the line to catch a ear, and he refused me and struck me across the right shoulder with,his gun. I made the remark to him then, ‘Wasn’t that a nice thing to do?’ and thereupon, without' word or warning, he ran his bayonet right, through me. [Signed] L. Reichenstein.”

The court excluded that portion of the statement which this court held was inadmissible on the former appeal. The only error, if error there be, was in following the opinion of the court and excluding that part which was excluded. It is true that we held on the former appeal it should not have been admitted, and this is still the writer’s individual opinion; but there are many cases that hold that the expression used was but a shorthand rendition of the facts, and was admissible. Pierson v. State, 18 Tex. App. 524; Roberts v. State, 5 Tex. App. 141; Sims v. State, 36 Tex. Or. R. 154, 36 S. W. 256. Many other cases might be cited, but these evidence there was no error in admitting that portion of the statement which was admitted in evidence.

There was no error in excluding that portion of the evidence of the witness S. E. Moss which was excluded. It was admitted by the state, as shown by the court in his approval of the bill and the evidence, that the call for the militia was regular and made by proper authority, and appellant was legally at the place where the difficulty occurred; therefore the testimony offered could have served no useful purpose.

Appellant requested many special charges, but they were all covered by the court’s main charge, except two, and in those two he sought to have the court instruct the jury that, if deceased intended to enter the inclosure guarded by defendant, or it so appeared to the defendant, and the defendant intentionally thrust him with the bayonet and killed him, his offense would be manslaughter. This is not the law, and the court did not err in refusing the charges presenting that theory. It takes both adequate cause and sudden passion, etc., to reduce an offense to the grade of manslaughter.

The court, in his charge, submitted mán-slaughter, and did so in an appropriate charge, under the evidence in this case. Every phase of the evidence which could raise this issue was presented in an admirable way, and the criticisms of the charge in this respect are without merit.

Self-defense was also properly presented to the jury for their consideration and determination in a most favorable light. After submitting self-defense in accordance with the testimony, the court also charged the jury on the law of accidental homicide, telling them: “If you should find and believe from the evidence that the deceased, L. Reich-enstein, came to his death because of a bayonet wound inflicted by a bayonet upon a gun in the hands of the defendant, yet, if said killing was unintentional and accidental, so far as this defendant was concerned, the same would not constitute any violation of the law, and the defendant could not be punished therefor. I therefore instruct you that: (a) If the defendant, Manley, placed or thrust his bayonet in front of himself or over, upon or across the wire of the inclosure, and the deceased ran against said bayonet or precipitated himself accidentally or intentionally against said bayonet, and the wound was inflicted in this manner, and if he died therefrom, this would be accidental homicide, (b) If Manley placed or thrust his gun on the wire of the inclosure, and his gun caught on the wire, and in extricating or removing, or attempting to extricate or remove, the same from the wire the deceased was unintentionally wounded by the bayonet and died from such wound, this would be accidental homicide, (c) If defendant, Manley, in the performance of his duties, had presented his bayonet in front of himself, or had placed or thrust his gun above, over, or across the wire of said inclosure, and the deceased was pushed against the said bayonet by other persons, and was accidentally wounded by said bayonet on said gun and died from such wound, then the killing would be accidental homicide, (d) If in any manner the deceased was accidentally injured by the bayonet upon the gun of the defendant, either by the act of the defendant, or by the deceased or other persons, but the same was accidentally done, and without any intention on the part of the defendant to kill or seriously injure the deceased, then such killing would be accidental homicide. Hence you are instructed that, although you may find that the deceased Reichenstein, came to his death from being thrust through with a bayonet upon a gun in the hands of the defendant, yet, if the said wound was inflicted under any of the circumstances above set forth, or if you have a reasonable doubt thereof, and the deceased died therefrom, then this would be accidental homicide, and you will acquit the defendant.”

The evidence raised the issue of accidental homicide and not negligent homicide. Under no phase of the testimony would the conditions arise which would call for a charge on negligent homicide of either the first or second degree.

We have carefully examined each ground in the motion for new trial; and, while appellant picks out here and there a paragraph or sentence and criticises same, yet, when the whole paragraph and charge is read, it is readily seen there is no ground upon which to base the criticism. Every phase of the law was presented, and the judgment is affirmed.  