
    WHITE et al. v. STATE.
    (No. 6432.)
    (Court of Criminal Appeals of Texas.
    Jan. 18, 1922.)
    1. Criminal law <&wkey;9!7(2) — New trial for absence of witness ■ after denial of continuance.
    If diligence is shown and the absent testimony appears material and probably true, and might have produced a different result, a new trial should be granted because of refusal to grant a continuance.
    2. Criminal law <&wkey;9l7(2) — Refusal to grant continuance not ground for new trial if evidence is cumulative.
    Refusal of court to grant accused a continuance by reason of absence of a witness who would testify to certain facts supported by affidavits of such witness was not ground for new trial where the evidence of such witness would be merely cumulative of other evidence available to the accused, and it reasonably appears that no injury resulted from the absence of such testimony.
    3. Criminal law <&wkey;>308 — Accused presumed innocent.
    The legal presumption in every case • is that the accused is innocent of crime until a contrary judgment is rendered by an impartial tribunal in a proceeding wherein such party has been accorded every fair chance to present all the facts bearing on the case.
    4. Criminal law <&wkey;9l7(2) — Error in denying motion for new trial by reason of refusal to grant continuance. .
    In a homicide case, held, that court erred in denying motion for a new trial on the ground of error in refusing to grant a continuance by reason of absence of an eyewitness.
    5. Criminal law <§=o829(5) — Instruction on self-defense held properly refused in view of given charge.
    In homicide case, where defendants claimed that deceased had a pistol and was attacking one of them, court did not err in refusing a special charge presenting the principle embodied in Vernon’s Ann. Pen. Code 1916, art. 1106, where the court in main charge said, “If deceased was armed with a pistol at the time he was killed and was making such an attack on H., and the manner of the use of such pistol, viewed from the standpoint of the defendants, was such as was reasonably calculated to produce death or serious bodily injury, then the law presumes the deceased intended to murder or inflict serious bodily harm or injury upon the said H.,” and the evidence showed that pistol found near body of deceased was not in condition for use as a firearm.
    '6. Homicide <S=>268 — Pistol held not necessarily a deadly “weapon.”
    A pistol which was not in condition for use as a firearm was not necessarily a weapon within the meaning of Vernon’s Ann. Fen. Code 1916, art. 1108, such as would have been calculated to produce death or serious bodily injury.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Weapon.]
    7. Witnesses <@=»383 — Impeaching testimony held upon immaterial'matter and erroneously admitted.
    In prosecution of two brothers for murder, testimony admitted to impeach defendants’ father to the effect that the father, after a difficulty with him, went to the deceased’s cattle pen some months before the killing and there engaged in a friendly conversation with deceased, was upon an immaterial matter, and should not have been admitted.
    Appeal from District Court, Brazos County; W. C. Davis, Judge.
    • Onie White and another were convicted of murder and appeal.
    Reversed and, remand-©cl
    See, also, 88 Tex. Cr. R. 159, 225 S. W. 511.
    H. S. Morehead, of Franklin, Henderson & Ranson, of Bryan, and Garrison, Pollard & Berry, of Houston, for appellants.
    John M. Mathis, of Houston, and R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORB, J.

Appellants were con- , victed in the district court of Brazos county, and their punishment fixed at confinement in the penitentiary for a period of 20 years.

Appellants were jointly charged with the murder of Dr. B. Harrison. The case , originated in Grimes county in 1918, and was , transferred to Harris county, and subsequently to Brazos county, where the instant trial was had. When the case was called for trial appellants presented their motion for , continuance, the overruling of which is here presented as error. Continuance was sought . because of- the absence of Mrs. Mabel White, . wife of aijpellant Onie White, it being set up . that at the time of making such application the witness was in Eastland county and in such physical condition as that she could not attend the trial. A sworn certificate of her " physician, of date March 7, 1921, was attached ■ to said application, certifying' thát Mrs. White was seven months advanced in pregnancy, and that because of certain complications named she should not undertake a long railroad journey nor be subjected to a severe mental strain. The. application was controverted by the state and certain affidavits were attached, only one of which relates to the testimony of Mrs. White. Dr. B. Harrison was killed in Grimes county, Tex., on January 8, 1918. The killing took place at a point near the house occupied by appellant Onie White and his family. Onie White and his brother, a codefendant, Horace White, and deceased were the only parties immediately present at the homicide. The state introduced three eyewitnesses who stated they were near enough to the scene to witness the killing. For appellants, and beside themselves, their father was their only eyewitness, and he stated that he was 500 or 600 yards from the scene of the difficulty and saw a part of same.

. There seems no controversy of the fact that Mrs. Mabel White had been duly summoned as a witness, and we are of the opinion that the certificate of the physician sufficiently showed her inability to be present. The application sets up that Mrs. White was at her home at the time of the homicide, about 50 yards distant, and that she saw most, if not all, of the fatal difficulty, and facts are detailed which, if true, would make her testimony very material in support of the theory that the shooting was in self-defense or defense of a brother. Said application was overruled. To their motion for new trial appellants attached the affidavit of Mrs. White, in which she says that, if present, she would have testified to facts which appear identical with those contained in the application. The motion for new trial was denied, and the error here set up is predicated on such action.

The question is not a new one. Our opinions uniformly agree that, if diligence is shown and the absent testimony appear material and probably true, and is of such character as that same might have produced a different result, a new trial should be granted. Many of our decisions, apparently beginning with Baines v. State, 42 Tex. Cr. R. 510, 61 S. W. 119, 312, hold that, if the absent witness make affidavit that he would have sworn, if present, to the facts stated in the application, and such affidavit be attached to the motion for new trial, the question of the probable truth of such testimony is no longer one for the decision of the trial court. Baines v. State, 42 Tex. Cr. R. 510, 61 S. W. 119, 312; Freeman v. State, 75 S. W. R. 505; Lawhorn v. State, 46 Tex. Cr. R. 555, 81 S. W. 714; Long v. State, 48 Tex. Cr. R. 434, 88 S. W. 809; Thomas v. State, 51 Tex. Cr. R. 329, 101 S. W. 797; McMillan v. State, 66 Tex. Cr. R. 288, 146 S. W. 1190; Rhea v. State, 67 Tex. Cr. R. 198, 148 S. W. 578; Valigura v. State, 68 Tex. Cr. R. 12, 150 S. W. 778; Mathason v. State, 89 Tex. Cr. R. 136, 229 S. W. 548. This, however, should not be understood to necessitate a new trial unless the materiality of such absent testimony be such as that, if true, it would likely produce a different result upon another trial. Branch’s Ann. P. C. § 838, and authorities cited.

Nor would it call for the granting of a new trial when there was other evidence cumulative of same present or available to appellant so that it reasonably appeared that no injury resulted from the absence of such testimony. The whole purpose of any trial ought to be the attainment of justice; and this is the supposed result of following where the signboard of the law points the way.

The legal and reasonable presumption in every case is that the accused is innocent of crime until a contrary judgment by an impartial tribunal is rendered in a proceeding wherein each party has been accorded every fair chance to present all the facts bearing on the case. If one accused of crime be not ready to try for that he had not his witnesses, he must first show that in manner as fixed by law he had tried to get them, and that their word would bear out his claim. The court may not agree, and may refuse his plea, in which case he must make it appear upon the trial that what he claimed for said absent witnesses is probably true. If he be held guilty by the verdict of the jury, he may make his motion for new trial and show as part of same that the witnesses sought have here made their affidavits attached, by which it is shown that they would have testified as stated in said application. This being done, the accused has gone as far as he is able, and unless the lower court be satisfied that, had the absent testimony been present, no other conclusion would have been reached than one of guilt, a new trial should be granted.

In the instant case there can be no question of the materiality of the testimony of Mrs. White. That such testimony would not be cumulative is clear. The facts sought to be obtained from her testimony were sworn to by no one save the two accused. No room is left thus to doubt the materiality of her testimony. The only point made by the state in its controversy appears in the affidavit of a witness who stated that he saw Mrs. White soon after the killing, and that she knew but little as to how same took place, and did not say that she heard any conversation, but did state that she tried to keep her husband from taking his gun out of the house, and asked him what he wanted to do with it. The facts in said affidavit are short and appear to us to state conclusions rather than facts, and would not seem to justify a finding that Mrs. White’s testimony wap . thereby shown not to be material. Wé think the motion for new trial should have been ¡ granted.

There was a sharp contention as to whether or not Dr. Harrison had a pistol and was making any attack or demonstration with it when he was shot. Appellants claimed that he had such pistol and was. making such attack. They asked special Charge No. 4 presenting the principle embodied in article 1106, Vernon’s P. C. We do hot think the refusal of such special charge. shows any error. In his main charge the court gave the following: ■ |

“If deceased was armed with a pistol at the time he was killed and was making such an attack on Horace White, and the manner of the use of such pistol, viewed from the standpoint of the defendants, was such as was reasonably’ calculated to produce death or serious bodily injury, then the law presumes the deceased intended to murder or inflict serious bodily harm or injury upon the said Horace White.”

We think this gave to appellants all to which they were entitled and presented their theory correctly. The evidence showed that the pistol found near the body of deceased was not in condition for use as a firearm. Conceding this, it is not necessarily a deadly weapon, and was not, within the , meaning of said article just referred to, a weapon such as would have been calculated to produce death or serious bodily injury, and said legal presumption that death or injury was presumed from the use of the weapon did not arise. That part of the main charge quoted gave to appellants the. right to act in defense of self or a brother if to them said Weapon appeared deadly, and this fully presented the law applicable to the facts.

We refrain from a discussion of the argument of private prosecution on,the trial, as same will not likely occur again. We have often written of the necessity for care in the use of only legitimate discussion of facts and the avoidance of abusive language and the expression of private opinions.

The testimony of Will Mallet was admitted to impeach the witness A. N. White,, the father of appellants. As we view same, it was upon an immaterial matter, and' should not have been admitted. A. N. White denied going to Dr. Harrison’s cattle pen' with Mallet some months before the killing, and after a difficulty between said witness' and Dr. Harrison, and denied there engaging in a friendly conversation with Dr. Harrison, and stated that he had not spoken to Dr. Harrison since said difficulty. Mallet affirmed the fact of going to said cattle pen with A. N. White, but said, if there was any talk between Dr. Harrison and White except about cattle, he did/ not. remember. . Mallet’s testimony that White went to said pen and there talked with Dr. Harrison about cattle may have shown that White had not told the truth in his denial of such facts, but we cannot see how such facts had bearing on any issue in this case. Appellants Were not present and were not bound by any of such conversation, and same shed no light upon the animus or feeling of the witness A. N. White, and seems to us clearly open to the objection that such purported impeaching testimony was on an immaterial matter. Branch’s Ann. P. O. § 165, and authorities cited. If this testimony of Mallet be eliminated, it will carry with it the charge of the court relating thereto, of which complaint is also made, and for this reason we forego any discussion of same.

For the reasons stated above, the judgment of the trial court will be reversed, and the cause remanded. 
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