
    McCLURE v. STATE.
    (No. 9630.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1926.
    Rehearing Denied March 24, 1926.)
    I.Homicide <§=>250.
    Evidence held to support conviction of private officer of railroad company for murder of negro he suspected of burglary.
    2. Criminal Law <§=>598(1).
    An accused, who is out on bail on a murder charge, must be diligent in preparing for trial.
    3. Criminal láw <§=>I 166(9).
    Refusal to postpone case for character witnesses does not ordinarily demand reversal.
    4. Criminal law <@=598(10).
    Failure of private officer of railroad company, accused of murder, -to request process for absent character witness- held not excused by statement of his superior officer that railroad company would furnish counsel to represent him.
    5. Homicide <§=>303.
    Evidence held not to warrant instruction relating to justification of killing in cases of burglary and theft by night, within Pen. Code 1925; art. 1222, subd. 8.
    6. Criminal law <§=>1091 (2).
    Bill of exception, complaining of summoning of special venire, but stating matters complained of as grounds of objection only, instead of verifying truth of matters complained of, held insufficient.
    Appeal from District Court, Wichita County ; H. R. Wilson, Judge.
    E. B. McClure was convicted of murder, and he appeals.
    Affirmed.
    E. D. Fulton and John Davenport, both of Wichita Falls, for appellant.
    James V. Allred, Dist. Atty., of.Wichita Falls, and Sam D. Stinson, State’s Atty., of Austin,' and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State. , ' , '
    
   HAWKINS, J.

Conviction is for murder; punishment being five years in the penitentiary.

The killing occurred on the night of December 5, 1924. Deceased was Wesley Disk, a negro. Appellant was special agent for the Fort Worth & Denver Railroad, with- headquarters at Wichita Falls. Prior to the. killing, but oh the' same night, he received a telegram from- Vernon, advising him that some one had. burglarized a caboose there, and stolen two' suits of clothes' and other articles, and requesting ■ him to search arriving trains for the parties. Nó description of the suspected parties was given, nor Whether they were white or negroes. In fact, the parties at Vernon sending the wire had no idea who had committed the burglary; and did not claim to know or have information that they were on their way to Wichita'Falls. The state’s case is made out by the statement of appellant, the next morning in the presence of witnesses at the scene of the killing, after he had been released on bond,- the substance of which is that, after, he received the telegram; he was watching the arriving trains from the direction of Vernon; that he saw two heads sticking out of a coal car, and he climbed on a car immediately behind- it; that the two parties jumped off and ran, that he told them to halt before he shot, and then shot four times, and one of them fell; that the other stumbled and looked like he dropped a bundle, but picked it up and kept going. Appellant said, if deceased had any weapon on, he did not know it; that he was running when shot; that, when he saw the heads of ,the parties in the car, he did not know whether they were white men or ne-groes, and did not know it was a negro he had shot until he went to where he had fallen in a cotton patch some 50 steps from the railroad. Appellant’s testimony on his trial was not materially different from his former statement. It shows that deceased and the party with him were in the cotton patch, running, when appellant fired. He claimed the first shot was an accidental discharge of the pistol, the ball going into the car on which • be was at the time; that he then fired three times into the air, his purpose being “to get that negro to halt so I could arrest them and see if they were the parties that stole this stuff out of the caboose at Vernon.” He denied shooting at deceased, but claimed the killing to have been accidental. Appellant had no warrant of arrest. He claimed to believe deceased and his companion were the parties who burglarized the caboose at Vernon, but had no information upon the point further than has already been indicated. Under the facts appellant had no semblance of justification for killing deceased, and may consider himself fortunate that the jury assessed the minimum punishment.

Appellant sought a postponement or continuance based on the absence of three witnesses by whom he expected to prove that his general reputation as a peaceful, law-abiding citizen, and conservative officer was good. The indictment was returned on December 15th, and appellant immediately made bond. On December 17th the case was set down for trial, on January 8th. No process was reguested for the absent witnesses until January 6th. Appellant seeks to excuse this lack of diligence by an averment that his superior officer assured him the railway company would furnish counsel to represent him. This can in no way excuse the failure to have process issued for his witnesses. He was out on bond, and diligence demanded that he prepare for trial. The refusal' to postpone' a case- for character witnesses does not ordinarily demand a reversal. For collated authorities, see section 333, Branch’s Ann. P. C. We see nothing in the present case to bring it within an exception to the general rule-in this-regard.

In a number of reguested charges appellant sought to have the jury instructed under subdivision 8 of article 1222, P. O. (1925 Revision), which reads:

“In cases of burglary and theft by night,' the homicide is justifiable at any time while the offender is in the building or at the place where the theft is committed, or is within reach of gunshot from such place or building.”

We can see no application of this provision of our statute to the case under investigation ; hence no error in refusal of the special charges. There is not the slightest evidence that any theft was committed at the place of the homicide. There is only the merest and most far-fetched suspicion that deceased was connected with the theft from the caboose at Vernon. If so, it was in another county, and far removed from the scene of the killing.

Complaint is made of the manner of summoning the special venire. The bill of exception does not in any manner verify the truth of the matters complained of. They are stated, as grounds of objection only, which does not suffice. See section 209, Branch’s Ann. Tex. P. C.

Finding no errors in the record demanding reversal, the judgment is affirmed. 
      /®=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     