
    SIMMONS v. STATE.
    (Court of Criminal Appeals of Texas.
    March 19, 1913.)
    1. CeimiNal Law (§ 595) — Continuance-Absent Witnesses.
    The denial of a continuance of a trial for homicide, because of the absence of witnesses who did not see the killing, and who were in the main character witnesses, was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. § 595.]
    2. Criminal Law (§ 1170) — Exclusion oe Evidence Subsequently Admitted.
    It was not error to sustain objections to testimony, where the same testimony was subsequently admitted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. § 1170.]
    3. Homicide (§ 308) —Trial — Questions 3?or Jury.
    Where the state’s evidence tended .to prove that after a difficulty with his wife’s aunt, wifh whom she was living after leaving him, accused went away, was gone for some time, returned and asked for. the aunt, when the aunt’s husband came to the door, shot, and killed him, rushed into the house, and killed the aunt-and his wife, also shooting another woman in the chin, saying at the time that he intended to kill all of them, the court properly submitted murder in the first degree.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 642-647; Dec. Dig. § 308.]
    4. Homicide (§ 309) — Instructions—Manslaughter— Sudden Passion.
    Where the homicide did not take place at the first meeting after accused was informed that deceased was the cause of accused’s wife living a life of shame, and he learned no new facts after the first meeting, an instruction requiring that, if adequate cause existed, it produced “sudden passion” was proper.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649, 650, 652-655; Dec. Dig. § 309.]
    5. Criminal Daw (§ 829) — Instructions— Curb by Otiier Instructions.
    Where the charge, as given, covered the law of the case, the refusal, of special charges was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Fred Simmons was convicted of murder in the second degree, and he appeals.
    Affirmed.
    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’r Indexes
    
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at 50 years’ confinement in the state penitentiary.

It appears that appellant’s wife had left him and gone to live with her aunt, Josephine Fuller, with the murder of whom appellant is charged in this case. On the afternoon of the homicide, appellant went to the house where his wife was staying with her aunt. The state’s testimony is that appellant, at this time, mistreated his wife, and was forced to leave by deceased, Josephine Fuller. Appellant contends that he went to see his wife at her request, and she desired to go with him, but deceased would not permit her to do so, and forced him to . leave, saying, if he did not do so, she would MU him, at the same time drawing a pistol on him. It is manifest that appellant left the place where his wife and deceased were residing; the issue of whether or not he had mistreated his wife being a contested issue. After leaving the house and being gone some time, he returned, and the fatal encounter ensued -in which appellant killed his wife, Josephine Fuller, and her husband, Curtis Fuller, also shooting another woman in the chin. The state’s theory is that, when appellant returned to the house, he asked for Josephine Fuller, and, when her husband came to the door, he shot and killed him, rushed in the house and .killed Josephine Fuller and his wife, in the m§lée shooting Sallie McCall in the chin, saying at the time he intended to kill all of them.

Defendant’s .theory is that he returned to the house to get his wife, and, when he asked for her, Curtis Fuller appeared at the door, armed, and some one saying, “Kill him,” he thought he was in danger of losing his life, and he shot and killed Curtis; that he then went in the house and Josephine, being armed and attempting to kill him, he shot and killed her; that the killing of his wife and'the shooting of Sallie McCall were accidental and unintentional.

In the first bill of exception appellant complains of the action of the court in overruling his application for a continuance. In approving the bill, the court shows that all the witnesses, for whom process had been issued, were in attendance during the trial of the case; some of them being examined by appellant without placing them on the stand. As to the witnesses for whom no process had been issued, the diligence shown is insufficient. Nope of the witnesses for whom appellant sought a continuance witnessed the killing, but were in the main character witnesses; and, under such circumstances, the court did not err in overruling the application for a continuance.

In the other three bills in the record it is complained that the court erred in rejecting certain testimony. The court, in approving the bills, states that, when the testimony was first offered, he did sustain an objection to it, but, after appellant testified, the witnesses were again offered, when the objection was overruled, and the witnesses were permitted to testify in detail. As the testimony was admitted during the trial of the case, no error is presented.

The court did not err in submitting murder in the first degree. The evidence on behalf of the state raised that issue, and the court’s charge on murder in the second degree has been frequently approved by this court. Barton v. State, 53 Tex. Cr. R. 445, 111 S. W. 1042; McGrath v. State, 35 Tex. Cr. R. 423, 34 S. W. 127, 941; and cases cited in section 426, Branch’s Crim. Law.

The court’s charge on “adequate cause” was a direct application of the law to the testimony offered in behalf of appellant on that issue; and the court, in so spécifieally applying the law to the evidence in the case, should be commended, and not condemned. The complaint that the charge was error in instructing the jury that if adequate cause existed, and this produced “sudden passion,” is without merit. The killing did not take place at the first meeting after appellant says lie was informed that deceased was the cause of his wife leading a life of shame. He admits he saw deceased the first time he visited the house; that his wife had written him prior to that time; and he was made aware of no new facts after this first meeting. The other criticisms of the charge on manslaughter are also without merit.

The charge on self-defense is also a full and fair presentation of that issue as made by the evidence; and, the charge, as given, covering the law of the case, it was not necessary to give the special charges, or either of them, requested by appellant.

The judgment is affirmed.  