
    MUSSELMAN v. STATE.
    (No. 8827.)
    (Court of Criminal Appeals of Texas.
    March 18, 1925.
    Rehearing Denied June 26,1925.)
    1. Criminal law <&wkey;539(2) — Testimony of accused on another’s trial, not amounting to confession, is admissible in behalf of state as original evidence.
    Testimony given by accused in former trial of another, and not amounting to confession, held admissible in behalf of state, upon trial of accused,, as original evidence.
    
      2. Criminal law <®=78I(8) — Defensive matter in exculpatory evidence on former trial, reproduced by state, requires trial court to submit it to jury.
    Defensive matter in exculpatory evidence •embraced in testimony on former-trial, introduced by state in instant trial, requires trial court to submit it to jury.
    3. Criminal law <&wkey;78l (8) — Refusal to instruct that state was bound by exculpatory statements in reproduced testimony of accused at trial of another held not error.
    . Where accused introduced in evidence part of her testimony on former hearings in the prosecution of another, and state then introduced the remainder 'of such evidence which did not constitute a confession, refusal to instruct that state was bound by exculpatory statements in the reproduced testimony of accused held not error.
    4. Criminal law <3=548 — Exculpatory statements in testimony on cross-examination of accused in trial of another held not to bind state introducing such testimony.
    Where accused introduced in evidence part of her testimony in prosecution against another, exculpatory statements in her testimony on cross-examination, held not to bind state introducing such testimony, in view of Code Or. Proe. 1911, art. 811, declaring that, when part of a declaration is introduced by one party, the remainder may be introduced by the other party.
    5. Criminal law <3=789(5) — Charge not requiring belief in defense of theory beyond reasonable doubt held proper.
    In murder prosecution, charge that if jury believed from the evidence that accused was in fear of her life, etc., then she was under duress and should be acquitted, instead of requiring jury to believe evidence upon which accused relied beyond reasonable doubt, held proper.
    6. Criminal law <&wkey;825(3), 844(1) — Trial court not bound to amend charge on exoulpatory theory, in absence of specific objection or special charge indicating error.
    Trial court held not bound to amend charge on exculpatory theory, in absence of specific objection embraced either in written exception to charge or special charge, so framed as pertinently to make known to the trial court the complaint relied on.
    7. Criminal law <&wkey;847 — Refusal of requested special charge on duress, covered by main charge to which no exception was taken, held not error.
    Where no written exception was taken to the charge given on duress, requested special charge on that subject held properly refused as not pointing out any defect in the main charge.
    8. Homicide <&wkey;348 — Charge on duress and refusal of requested charge held not reversible error.
    Charge on duress and refus'al of requested special charges on that subject held not reversible error under Code Cr. Proc. 1911, art. 743.
    9. Criminal law <3=1166(9) — Refusal of continuance, in absence of diligence, is ground for reversal only in exceptional cases.
    Trial court’s refusal to grant continuance on account of absent testimony, where diligence is absent, is ground for reversal only in exceptional cases, as where it appears the absent testimony is material and probably true.
    10. Criminal law <&wkey;1166(9) — When refusal to grant continuance to secure absent testimony is reversible despite lack of diligence stated.
    Refusal to grant continuance applied for, on the ground of absent testimony, is reversible despite lack of diligence in securing it, when the evidence introduced on the trial impresses the appellate court' with the conviction, not merely that the defendant might possibly have been prejudiced 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.
    11. Criminal law <§=3598(2) — Refusal of continuance, based on absence of diligence, held proper, exercise of discretion.
    In murder prosecution, refusal, based on absence of diligence, to continue case on ground of absent .testimony, held, proper exercise of discretion.
    On Motion for Rehearing. .
    12. Criminal law &wkey;1038(1) — Court of Criminal Appeals cannot consider objections raised on appeal for first time.
    Court of Criminal Appeals cannot consider objections to charge raised on appeal for first time.
    13. Homicide &wkey;297 — Omission of charge as to matters to be considered held not error.
    On trial for murder, failure to. charge that jury should consider all facts and circumstances in deciding whether accused acted under duress held not error.
    14. Criminal law &wkey;829(I) — Refusal to give requested special charge presenting matter covered by main charge held not reversible error.
    Refusal to give requested special charge, presenting merely in different form matter of duress covered by main charge, held not reversible error.
    15. Homicide <&wkey;151 (I) — Defendant held to have burden as to defense of duress.
    On trial for murdering husband, defense of duress, based on fear of loss of life or personal injury, or threat of such character as rendered her incapable of resistance, held, within Pen. Code 1911, art. 52, placing burden on defendant to prove excuse or justification.
    Appeal from District Court, Shelby County; Chas. L. Braehfield, Judge.
    Pearl Musselman was convicted of murder, and she appeals.
    Affirmed.
    Dallas Ivey and H. B. Short, both of Center, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Aqstin, for the State.
   MORROW, P. J.

The offense is murder; punishment fixed at confinement in the penitentiary for a period of 15 years.

The companion case of Jim Ballew v. State is reported in 97 Tex. Cr. R. 325, 2C0 S. W. 1046.' The evidence in the present trial is not different from that which led to the conviction of Ballew, save that in that trial the appellant in the present case testified as a witness for the state, entailing the necessity for corroborative evidence. In the present case, her testimony upon the trial of Ballew, as well as upon the habeas corpus trial in which he sought bail, was reproduced. She introduced in evidence part of her testimony on the former hearings, and the state then introduced the remainder. The record in the present case shows no objection to this proceeding.

The testimony given by the appellant upon the former trial' does not bear the characteristics of a confession. The state was at liberty to produce it upon the present trial as original evidence. See Collins v. State, 39 Tex. Cr. R. 447, 46 S. W. 933; Kirkpatrick v. State, 57 Tex. Cr. R. 17, 121 S. W. 511; Branch’s Ann. Tex. P. C. § 80. Any exculpatory evidence embraced in the reproduced testimony was available to the accused, and, if such matter presented a defensive theory, it would he ineiynbent upon the court to submit it to the jury, but the procedure disclosed did not, in our judgment, call for an application of the principle announced in Pharr’s Case, 7 Tex. App. 473, in which it was declared, in substance, that, where the state relied upon the confession of the accused to show that the accused had committed the offense, and in the confession there was an exculpatory statement, it was incumbent upon the court to instruct the jury that this exculpatory statement, having been introduced- by the state, was to be considered as true unless disproved.

Prom what has been said, it follows that in the opinion of this court the refusal of appellant’s requested charge No. 8, to the effect that the state, having used the appellant as a witness upon the. trial of Ballew, and reproduced her testimony upon the present trial, was bound by her statements, and that, unless from all the evidence they should believe beyond a reasonable doubt that appellant was a principal in the killing of the deceased, as the term “principal” was defined in the charge, an acquittal should result. As indicated above, we think the court was not required to instruct the jury that the state was bound by the exculpatory statements in the appellant’s testimony. Casey v. State, 54 Tex. Cr. R. 587, 113 S. W. 534. The rule requiring such a charge as stated is not of universal application. See Pickens v. State, 86 Tex. Cr. R. 660, 218 S. W. 755, arid numerous cases cited therein. So far as the writer is aware, this rule is confined to cases in which the state takes the initiative and introduces a confession or admission of the accused made out of court. Such was the case in Pratt v. State, 50 Tex. Cr. R. 227, 96 S. W. 8; Forrester v. State, 93 Tex. Cr. R. 415, 248 S. W. 40, 26 A. L. R. 537, and numerous other cases to which reference is there made.

The procedure adopted in the case now under consideration is novel, in that, without objection, the state permitted the accused to introduce as original testimony the stenographer’s report of the appellant’s testimony given upon the trial -of Ballew, and the state then, without objection, reproduced the testimony given by her upon the same trial. Slie is not in a position to claim that the exculpatory declarations contained in the part of her former testimony which she introduced were put in evidence by the state and thereby avail herself of the rule for which she contends and which is asserted in Pharr’s Case, supra, and others. Neither can she, in our judgment, avail herself of that rule with reference to the exculpatory declarations contained in the part of her testimony embraced in her cross-examination upon the former trial, which was introduced in evidence in this trial for the reason, as stated above, that the cross-examination was explanatory of the testimony introduced by her, and a part of the same transaction comes, as we conceive it, properly within the terms of article 811, C. O. P., declaring that, when part of a declaration is - introduced by one party, the remainder may be introduced by the other party.

There was no exception to the court’s charge for the failure to take note of the exculpatory declaration. However, cognizance was taken of it as is manifested by the eighth and ninth paragraphs of the 'court’s charge, which read thus:

“(8) Our statutes provide that a person forced by threats or actual violence to do any act is not liable to punishment for the same. Such threats, however, must be: (1) Loss of life or personal injury; (2) they must be such as are calculated to intimidate a person of ordinary firmness.
“(9) Now, if you believe from tlie evidence that the defendant, Pearl Musselman, by reason of threats previously made by Jim Ballew, if any were made, was in fear of the loss of her life, or personal ipjury, or that said threats, if any, were calculated to intimidate the defendant, and that said threats of violence, if any, were such as to restrain the defendant from escaping, or such as to render her incapable of resistance, she would b.e under duress and not liable to punishment, and, if you so find, you will acquit her.”

In the brief, it is suggested that paragraph 9 of the charge is faulty in the use of the words “if you believe from the evidence that the defendant was in fear of the loss of life,” etc. This being a submission of the defensive theory, it would not have been proper that the court instruct the jury that they roust believe the testimony upon which she relied beyond a reasonable doubt. To have so instructed would have turned the reasonable doubt against her and not in her favor. Moreover, the complaint was not pointed out by an exception at the time of the trial. Even if the instruction given were incomplete, the court having charged the jury on the exculpatory theory arising from the appellant’s reproduced testimony was not bound to amend its charge upon that subject, in the absence of a specific objection embraced either in a written exception to the charge or a special charge so framed as to pertinently make] known to the trial court the complaint relied upon. See Boaz v. State, 89 Tex. Cr. R. 515, 231 S. W. 790; Parker v. State (Tex. Cr. App.) 261 S. W. 784; C. C. P. arts. 735, 737, 737a, and 743.

Another special charge requested was, in substance, that if, by reason of threats calculated to intimidate a person of ordinary firmp.ess, and which did ’ intimidate the appellant and contributed to influence her in becoming an actor in the homicide there should be an acquittal. In -another special charge there was a request to instruct the jury that, in passing upon the question of duress, all the facts and circumstances introduced in evidence should be taken into consideration. Neither of these charges is tenable for the reason that, as stated above, they related to a subject which was submitted to the jury, namely, that of duress, against which there was no- exception to the charge directed. The special charge did not, in our judgment, point out any such defect in the main charge as would warrant us in reversing the judgment. See Regittano v. State, 96 Tex. Cr. R. 477, 257 S. W. 906.

Passing all technical obstacles to the full .consideration of the criticisms of the charge of the court and its refusal of the requested charges, we are constrained to regard them as devoid of any matter which would justify a reversal of the judgment, when viewed in the light of article 743, O. O. P., wherein it is declared that a nonobservance of the statutory directions touching the substance of the court’s charge to the jury shall not work a reversal, unless calculated to injure the rights of the accused, or unless it appears that a fair and impartial trial has not been accorded the accused.

The state’s theory, coming from several witnesses, was that the appellant had conspired with Ballew to cause an insurance policy to be issued upon the life of the deceased, and that one of the motives which, inspired the homicide was the desire to realize upon.this insurance policy. Walker, an insurance agent, testified that the appellant came to his office and discussed the matter of insurance upon the life of the deceased, and that, upon her admission, this occurred before their marriage. This appellant denied. In her testimony she gave evidence that she and Ballew had discussed the insurance several times. According to her evidence, she had received the insurance policy and had afterwards directed Mr. Walker to take the policy and put it in the bank. Two or three days before the homicide, Walker brought the insurance policy to the appellant and collected $50 which the deceased had left with her for the purpose of paying the premium. B-allew knew of the arrival of the policy before the appellant did; he having learned it from Walker. Ballew told her that the policy had a flaw in it, and asked that he be given possession of it. This she declined to do however. She had also declined to give Ballew the address of her husband, for fear, she said, that Ballew would kill him. Ballew finally secured the address by intercepting letters and learned that the deceased was at Richmond, Tex. She said that Ballew induced her to write a Ku Klux letter to her husband, telling him to return to Houston; that, after writing this letter at Ballew’s dictation, she wrote another without his knowledge, advising her husband not to come. However these letters were not shown to have reached the deceased. He came to his home early in the morning and remained with his family until night, when Ballew appeared. Touching what followed, we quote from appellant:

“He [meaning Ballew] came in and said, ‘Howdy do,’ and ‘How are you all?’ and asked Tom when he came in, and Tom told him he ‘got in this morning.’ He asked did he come from Houston, and he said, ‘No; he came from Richmond.’ My sister then asked him to sit down, and he said, ‘No; I haven’t got time;’ and he 'walked out by the door and there was a gun setting there, and he picked up the gun and walked out on the front porch. He said, T believe I will borrow you alls gun;’ and walked out on the front porch, and motioned his head for me to come there, and I walked on the front porch where he was. He said then, ‘Pearl,’ he says, ‘if you want to make your days long, you better get Tom to come along, but if you want to make them short, by God, just stay in there.’ I told him, T just can’t do it; I just- can’t do nothing like that.’ He says, ‘Let me tell you; there is no dispute between us.’ He was talking dow, and he says: T can tell you how to do this, and you better do it. You tell Tom that there is a party up to Childers’ somewhere, and that I am there, and you feel uneasy about me, and let’s go see about him.’ And he says, ‘When I whistle I will be behind the garden, and you had better come.’ I then went back in the house and sat down, but didn’t stay but a few minutes until Jim whistled. Then I told Tom that Jim was over at a party, and he must be in some kind of trouble, and let’s go and see about it, and Tom said, ‘All right, let’s go;’ and we went right out the back door, or" the hall door on the little porch, and stopped there at the side gate that goes down to the coal mine and through that. We went on out to the garden and met Jim there, and he said, ‘Where have you all started?’ and Tom said, ‘We have started to the party to see about you;’ and Tom said he was uneasy about him, and so Jim says, ‘Let’s go over there; they are having a big time; I had started back to tell you.’ So Tom says, ‘All right, we will do that;’ and we went. Jim had the gun, and we all left the garden together. We were not walking side by side; we were all going just like geese — one after the other; Jim had Tom in the lead going down a little trail, and Jim was behind Tom, and I was behind Jim. Jim was carrying the gun across his shoulders this way. We went way over there in the sedge field somewhere. While they were going down there they talked about oil leases and oil royalties. As to what was the first thing that attracted my attention to the fact ;that there was about to be or was a shooting, I will state that I knew about that when I went out. I didn’t know where it .would be, or nothing about that. We went way down in the sedge grass before the shooting happened; I know I waded up to here. I don’t know just horn Jim done that shooting; he had the gun down in his hand; I wasn't paying attention to how it was done.”

Appellant then proceeded to tell that Jim Ballew fired one shot, got the money and a watch belonging to deceased and went back with the appellant to the home of her mother, in the meantime threatening to kill appellant if she told what he had done, and directed her to throw the gun away or to destroy the old gun. Appellant told Bal-lew that she could not do that as the gun belonged to Mr. Berryman. He also told her that he would see that she never suffered for anything in this wide world, telling her in this connection that deceased might have carried her off and poisoned her and also that she would likely be put in jail and an effort made to scare her and make her tell, and that she had better keep her mouth or he would kill her. Appellant also testified that she was very much frightened, and, after telling her mother that Ballew had killed her husband, she afterwards said that it was not true and showed her mother the two shells that had been in the gun all of the time. -Appellant testified further:

“As to what conversation we had coming back to the house with reference to the insurance, Jim told me, ‘Don’t worry about my killing Tom, thinking you will not get your insurance, you will get them, because me and Mr. Walker will see that you get it.’ When he killed Tom, he said, ‘That son of a bitch won’t bother or worry any one else.’ That was right after he shot him. As to whether anything was said about me getting all of the insurance or him part of it, I will state that he had done said he would get part of it, but didn’t say what part I would, get. That was on the way back from the body to the house. As to why I took my husband out and let him be murdered, I was just seared; he scared me into doing it;. I was scared he’ was going to kill me. He would have killed me that night; he would have shot me so full of holes, like he done Tom, and maybe ⅞11 my. people, to keep it down, because he said he would do that. He told me that lots of times, and told me if I told this on him he would kill me. He told me if they got m,e in court, I ‘damn sure better hold my head and not let nothing slip.’ ”

On cross-examination of the appellant on the habeas corpus trial of Ballew, introduced by the state, she testified about the deceased thus:

“X did not take him out to get him killed; I knew I could not get the insurance for any such mess. I took him out because the man told me I better take him out, and I knew he would kill me too. Lie would treat me just [as] he done Tom. "As to whether I thought it safer to take him down in the woods and get him killed, I will say I was scared to say’ anything. We didn't agree to divide tie insurance money. I didn’t think of dividing the insurance money. I thought I -would spend every nickel to have his-neck broke.”

A motion to continue the case was made. The indictment was filed on the 6th day of March, 1923. The trial took place on the 21st day of March, 1924. Appellant, during the interval, was confined in jail. According to the motion for a continuance, she was represented almost until the 1st day of March by an accomplished and capable lawyer who ceased to represent her on the 17th day of February, 1924. Under his guidance, she had testified upon the habeas corpus hearing and upon the trial of Ballew. After her attorney had ceased to represent her, the court appointed counsel who represented her upon the trial and upon this appeal.

The application for a continuance named twenty absent witnesses. According to the averment in the motion, these witnesses were desired to corroborate the truth of the appellant’s statements. , But little details are given with reference to what each particular witness would testify, but, so far as they are given, they relate to testimony corroborative of some of the appellant’s declarations as contained in her testimony touching the manner in which she became acquainted with her' husband, and contradicting the statements of the witness Walker touching her connection with the insurance policy. As we understand it, the prevailing idea in the motion for a continuance is that there had been developed for the appellant no defensive theory save that of duress, and that upon that issue she relied upon her testimony alone. The theory was advanced in the motion that a conspiracy to obtain an insurance policy upon the life of the deceased and to kill him had been formed by Jim Ballew, the state’s witness Walker, who was an insurance agent, and other persons unknown to the appellant; her position being that she was not a party to the conspiracy. None of the witnesses named in the motion were desired to controvert the facts immediately attending the homicide as developed from the testimony of the appellant. The motion for a continuance was controverted by the sworn statement of the district attorney, to which, according to the recital, was attached the certificate of a reputable physician to the effect that the witness Maud Jones was permanently disabled, and that her condition was such that diligence would demand the taking of her deposition. In qualifying the bill, the trial judge certified that all of the witnesses named in the motion were in attendance uijon the trial except four, whom he named. One of these was Maud Jones, a sick sister of the appellant. Another was Mrs. McKnight who was a resident of Nacogdoches county. Another was Grover Isom, who was supposed to be in Harris county. Another was Mrs. Samford, who was a resident of Shelby county, but who was temporarily absent in Williamson county. The record fails to show that any additional process was sought for the absent witnesses, and on the whole matter there is an absence of diligence. In fact, there was no semblance of diligence to secure the attendance of any of the witnesses. To excuse this, the fact that the attorney who, for about a year after the indictment, had represented the appellant had not deemed it necessary, advisable, or expedient, or for some reason had not caused the issuance of process for any of the witnesses named, nor had the appellant done so, nor had any effort been made to take the deposition of the witness Maud Jones. In the controverting affidavit is the statement that the application for a continuance was not the first but the third, and by agreement the case was continued at the June and October terms, 1923. The learned counsel for the appellant does not seriously contend that the rule of diligence was complied with, but advances the theory that an equitable showing was made, and relies upon the case of Cooper v. State, 72 Tex. Cr. R. 645, 163 S. W. 424, and others.

It is only in exceptional cases that this court would be warranted in reversing a judgment of conviction approved by the trial judge because the continuance was denied when no legal diligence was shown to secure the attendance of the witnesses. See Branch’s Ann. Tex. P. C. § 314, and numerous cases cited, also section 319. If the ends of justice demanded, certainly the trial judge should grant a new trial where an application for a continuance has been denied, which, in the light of the testimony adduced upon the trial, is material and probably true, and, in a proper case, "the failure to grant a new trial under such circumstances might be evidence of an abuse of the discretion of the trial judge, even though the showing of diligence -was insufficient. See Casinova v. State, 12 Tex. App. 554, and other cases cited by Mr. Branch in his Ann. Tex. P. G. § 319. In the same section, however, Mr. Branch deduces from Covey v. State, 23 Tex. App. 391, 5 S. W. 285, and numerous other cases cited, a statement which is correct and which follows:

“It is only in a case where, from the evidence adduced on the trial,” the appellate court is “impressed with the conviction, not merely that the defendant might possibly have been prejudiced in his rights by such ruling, but that it was reasonably probable that if the absent testimony had been before a jury a verdict inore favorable to the defendant would have resulted.”

Tested by the rule stated, and taking into account the testimony adduced upon the present trial, no doubt is entertained that the learned trial judge exercised proper discretion in refusing to continue the case and in declining to grant a new trial upon the ground of absent testimony.

The commendable fidelity and skill with -which counsel for appellant have performed the obligation imposed upon them through appointment as representatives of the accused is made manifest by the record, showing the conduct of her case on the trial and the brief and argument presenting the appeal to this court. Pitiable as is the plight of this young woman, misguided perhaps by an older head and a stronger will, and drawn on by the unworthy object of her affections, we conceive that duty leaves open to this court no course other than to order that the judgment of conviction be affirmed. This is accordingly done.

On Motion for Rehearing.

LATTIMORE, J.

In an extended motion for rehearing, appellant argues various supposed defects in the charge, and we again call attention to the fact that there was no exception taken to said charge,' and hence we are in no position to discuss or consider objections here raised for the first time.

Complaint is renewed of our failure to holcl it reversible error for the court to refuse special charges Nos. 9, 10, and 11.. Referring to the last special charge named, we see no reason in this case to believe it erroneous for the court not to have given a charge instructing the jury that they should take into consideration all the facts and circumstances of the case in deciding whether or not the accused acted under duress; nor do we observe any advantage to be gained by appellant by the submission of special charge No. 10, which merely presented in a different form matters covered by the main charge of the court.

In regard to special charge No. 9, we observe that appellant did riot take the stand in this case and testify that she aided, advised, or encouraged the killing, or was otherwise a principal to the killing of her husband because of any specific threats made by Jim Ballew, nor do the facts in the record, otherwise than a few expressions of appellant as given in her testimony upon the trial of said Ballew, and in his habeas corpus hearing, sustain or support the proposition that she acted in the premises through fear of loss of life or personal injury, or from threats of such character as rendered her incapable of resistance. We are inclined to believe that under the facts of this case appellant’s defensive theory, if any was raised by her testimony as given on Ballew’s trial,' which was introduced in this case, in support of the proposition of acting under duress, would be governed by the rule laid down by our Legislature in article 52 of our P. C., which provides that, when the facts have been proved which constitute the offense, it devolves upon the accused to establish the facts or circumstances on which he relies to excuse or justify the prohibited act or omission. The court having given, in the general charge, reasonable doubt as applicable to the whole case, and having instructed the jury specifically in regard to the defense of duress, and the facts tending to support said defensive theory appearing in the condition that they are, we think we correctly applied the rule of article 743 of our O. O. P., which forbids the reversal of a case for any error in the charge unless it was such as, in the opinion of this court, was calculated to injure the rights of the appellant. The undisputed facts in the case show that appellant had been writing letters to and having conversations with Ballew for some time prior to the date of the killing indicative of a conspiracy; that the threat relied upon by her as having been made by Ballew was directed solely at the proposition of her inducement to her husband to come out to where Ballew was. The uncontroverted facts show that, after she induced her husband to go to where Ballew was on the night of the homicide, she then went without any threats or compulsion of any character whatever, with the two men, to a point a mile or a mile and a half away at which place Ballew shot and killed deceased. Nothing appears in the record to indicate but that appellant could have ddsisted after she had taken deceased to where Ballew was, and she could have taken her departure or gone away at any time between that point and where the killing occurred. ,

Upon this record we are not impressed with the facts that appellant has not had a fair and impartial trial, and the motion for rehearing will be overruled. 
      
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