
    Francisco Reyons v. The State.
    
      No. 347.
    
    
      Decided March 24.
    
    1. Murder — Practice as to Putting All Eye-Witnesses On the Stand. — On a trial for murder the prosecution is not required to place every eye-witness on the stand, hut may use'just so many of them as in the opinion of the prosecuting officer and the court are sufficient to justify a legal conviction. Following Mayes v. The State, ante, p. 33.
    2. Same — Charge—Homicide in Defense of Another. — On a trial for murder, where it appeared that two parties were engaged in a difficulty, and one was endeavoring to stah the other with a knife, and deceased interfered to prevent him from doing so, whereupon he assaulted deceased with'his knife, and the son of deceased interfered •for the protection of his father, and defendant, who was a looker-on, saw and knew all that was transpiring-’ — knew that the party who was endeavoring to use the knife was in no danger from deceased or his son — fixed and killed deceased, Held, that a charge was correct which, in effect, instructed the jury, that if defendant saw the origin of the difficulty, * * * and knew that his Mend was in no danger, hut that the interference with him by deceased and son was simply to prevent him from injuring the party he was endeavoring to stab with his knife, or themselves, and knowing said facts defendant with a sedate and deliberate mind and formed design did with a pistol shoot and thereby kill deceased, then defendant would be guilty of murder in the first degree.
    3. Same — Manslaughter.—-On a trial for murder, where the facts in evidence were as stated in the above paragraph number 2, it was not error for the court to refuse instructions upon the law of manslaughter.
    4. Continuance. — -An application for continuance is properly overruled if it be shown that the witness was not present at the time and place of the occurrence and could have known nothing about it; and again, when the proposed testimony of a witness is not probably true; and again, when the evidence of a witness is too generally stated, or where conclusions are stated without the facts upon which they are based.
    Appeal from tbe District Court of Travis. Tried below before Hon. J. H. Eobertsoh.
    Tbis appeal is from a conviction for murder of tbe first degree, witb tbe punishment assessed at death. Tbis is tbe second appeal in tbis case. Tbe former appeal was also from a conviction for murder in tbe first degf ée, witb tbe death penalty. Eeyons v. Tbe State, 32 Texas Crim. Eep., 151.
    Tbe facts stated in tbe opinion of Judge Davidson, together witb those stated in tbe opinion of Judge Simians on the former appeal, sufficiently show tbe nature and character of tbe case as made by tbe evidence.
    After the State bad closed her evidence tbe counsel for defendant moved tbe court to require tbe district attorney to call and examine three other parties who were eye-witnesses to tbe transaction, and who were present in court, having been summoned as witnesses for tbe State. Tbe court refused to do so, informing counsel for defendant that they could put said witnesses upon the stand and examine them if they desired to do so. This they declined to do, and saved a bill of exceptions to the ruling of the court. After the court had read the charge to the jury, defendant’s counsel requested the court to submit to the jury the law of manslaughter and justifiable homicide, which the court refused to do, and defendant reserved a bill of exceptions to the court’s refusal to so charge.
    
      Hugh L. Davis, for appellant.
    
      It. L. Henry, Assistant Attorney-General, for the State.
   DAVIDSON, Judge.

The conviction in this Case was of murder in the first degree, and the punishment assessed was death.

Ferma Lerma, Manueal Aguirre, and Clem King, having been summoned as witnesses by the State, were present at the trial. The defendant moved the court to require the prosecution to place them on the stand and elicit their testimony. This was refused, and an exception reserved. The State’s case was made out by the testimony of eye-witnesses, and it is therefore unnecessary to discuss the rule laid down in Thompson’s case, 30 Texas Criminal Appeals, 325, relied on by defendant. That case is authority to the extent that it holds the State should prove the guilt of the accused by positive rather than by circumstantial evidence. It in no sense sustains the position of appellant that all eye-witnesses to a homicide are required to be placed on the stand and examined by the State. In fact, we do not understand that such a rule of practice has ever obtained in this State, nor that it would be a correct one under our procedure. In the case of Wheelis v. The State it was said, Judge Hurt delivering the opinion of the court: “It seems from the brief of the counsel that the Hunnicutt opinion (20 Texas Crim. App., 632) is so construed as to require the State to introduce all the testimony of witnesses to the transaction in all cases. My brethren do not, nor did they in that case, intend to convey any such idea. It is expressly stated in that case, and in the Phillips case (22 Texas Crim. App., 139), that this matter is in the sound discretion of the court. That there may be cases in which the rule would not apply is clearly stated. We advise counsel to reread the Hunnicutt case, and it will be seen that no general rule is attempted to be stated.” 23 Texas Crim. App., 238. In Gibson’s case, 23 Texas Criminal Appeals, 423, the same court again announced the same doctrine in the following language: “Neither the Hunnicutt (20 Texas Crim. App., 632) nor the Phillips (22 Texas Crim. App., 139) case contains the doctrine that in all cases, and under all circumstances, must the State place upon the stand each and every eye-witness to the transaction.” This doctrine has again been fully reaffirmed by this court in Mayes v. The State, ante, p. 33, and in Jackson v. The State, post, p. 281.

At an early date, at common law, tbe rule of practice was as contended for by appellant. Tbis grew out of tbe fact tbat under tbat system tbe accused bad no right to compulsory process in capital cases, and because “tbe prisoner was not even permitted to call witnesses, tbougb present, but tbe jury were to decide on bis guilt or innocence, according to tbeir judgment, upon tbe evidence offered in support of tbe prosecution.” 1 Chit. Crim. Law, 624, 625. And while later on tbe practice of rejecting evidence for tbe accused was abolished, yet tbe witnesses on bis behalf “were merely examined without any particular obligation, and therefore obtained but little credit with the jury.” Id. By reason of tbe fact tbat they were not sworn they did not, and could not, obtain tbe same degree of credit as those introduced in support of tbe prosecution. This unjust custom rested upon practice, and not upon law. It certainly could not be held to be just and reasonable, and was entirely done away with by an act of parliament. Id., 615, and notes. It then became tbe settled law of England tbat no witness could be examined in any criminal proceeding except upon oath. “And tbis rule is so universal in its operation tbat a peer can not be examined upon bis honor, but must take tbe same oath with any other individual.” Id. Tbe reason for tbe rule having ceased, it was but a natural and reasonable sequence that tbe rule itself should pass away. Whether it did or not, or whatever may be tbe common law rule, we do not think it ever applied in tbis State, for with us the defendant is and always has been entitled to compulsory process for bis witnesses, and can take tbe depositions of witnesses residing in other jurisdictions — a right denied tbe State. These witnesses are required to give tbeir testimony under oath, and in so far as tbe law can do so are placed upon tbe same plane with tbe witnesses for tbe prosecution. In tbe trial the accused has at least equal rights with the government in regard to tbe introduction of testimony, and tbe State must make out its case beyond a reasonable doubt; else tbe defendant is entitled to an acquittal. Until tbis has been done, be can safely rest bis case, with tbe assurance of an acquittal and immunity from any sort of punishment. When tbe State has made out its case beyond such reasonable doubt, it may rest its case, and it then devolves upon tbe accused to offer such evidence as be may deem proper. This is discretionary with him. Tbe courts will not compel him to do so. Code Crim. Proc., art. 660. As was previously said, we are not discussing tbe rule tbat tbe State should introduce tbe best evidence of which tbe case is susceptible. We bold tbat tbe State is not required to place every eye-witness on tbe stand. It may make out its case sufficiently to justify a legal conviction, and proceed no further.

The court charged the jury: “If Marcellano Lassano * * * was making an unlawful assault upon one Jose Romero with a knife, and was seeking to cut said Romero with said knife in the presence of M. M. Hornsby, then said Hornsby had a right to interfere to prevent said Marcellano from cutting said Romero; and if, when Hornsby interfered to protect said Romero, said Lassano turned upon and assaulted Hornsby with said knife, then his son, Make Hornsby, had the right to interfere to prevent injury to his father, and the said Hornsby would have been authorized to use sufficient force to protect both said Romero and M. M. Hornsby from injury, and if they used no more force than was necessary to accomplish this end, then the defendant would not under the law be authorized to interfere to prevent the protection of said Romero and said Hornsby from said Lassano; and if the jury so find the facts to be, and further find beyond a reasonable doubt that the defendant, Francisco Reyons, saw the origin of the difficulty between said Lassano and Romero, and knew that Lassano was in no danger, but that the interference with him by the Hornsbys was simply to prevent his injuring said Romero or said Hornsby, and knowing said facts said defendant, Francisco Reyons, interfered, and with a sedate and deliberate mind and formed design to kill said M. M. Hornsby — that is, with express malice, as defined in the seventh paragraph of this charge — did with a pistol shoot and thereby kill said M. M. Hornsby, then the defendant would be guilty of murder in the first degree.” Exception was reserved to this portion of the charge, because “the evidence shows, or leaves in question the fact to be whether the defendant, after seeing the inception of the difficulty, did not think it ended as to Lassano and Romero, and when called to assist Lassano supposed him assaulted by the Hornsbys unlawfully.” We think this an admirable application of the law to the facts of this case. If appellant was aware of the origin of the difficulty, he was evidently aware of the intention of the deceased and his son. He knew deceased had seized Lassano for the purpose of preventing him from murdering Romero. He also knew that Make Hornsby, the son of the deceased, was engaged in the same business or to protect his father from the murderous.assault of Lassano. Neither of the Hornsbys had inflicted a blow upon Lassano, but were holding him to prevent him from killing Romero. But a very short time elapsed from the time Lassano drew his knife for the purpose of taking the life of Romero until the deceased was killed by appellant, and if, when deceased was killed, Lassano had abandoned his intention to kill Romero, he was evidently intending to use his knife upon the Hornsbys. The acts and intentions of Lassano were well known.to appellant, for he witnessed the whole transaction. The facts did not call for a charge on the law of manslaughter; wherefore the court did not err in refusing to submit such issue to tbe jury. This question was settled on the former appeal.

The motion for continuance was properly overruled, and this seems to be conceded, inasmuch as it is not urged in brief of counsel. The witness Frank Flores was not present at the place of the killing, and the testimony of the witness Soldonio is not probably true, if sworn as stated in the application. The evidence of the witness Ureal is too generally stated. If he was present at the time and place of the homicide, the facts expected to be proved by him should have been stated in some other manner than mere conclusions. Willson’s Crim. Stats., sec. 2165; White v. The State, 32 Texas Crim. Rep., 625. We deem it unnecessary to review the evidence. If the testimony adduced by the State be true, then the jury were justified in their verdict.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.  