
    ENGLISH v. STATE.
    (No. 5751.)
    (Court of Criminal Appeals of Texas.
    June 23, 1920.
    Rehearing Denied Oct. 13, 1920.)
    1. Criminal law <&wkey;ll80 — Ruling as to-evidence on former appeal is law of the case.
    A ruling on former appeal that certain evidence was properly admitted, which was not challenged by motion for a rehearing, became the law of the case, and, unless it was clearly wrong and harmful, could not be reviewed on the second appeal.
    2. Homicide <&wkey;!69(3) — Insult by defendant’s brother to deceased held relevant.
    In a prosecution for homicide, an insulting epithet by defendant’s brother to deceased was relevant and admissible where the prosecution’s evidence tended to show that defendant, after learning of the insult, armed himself to protect his brother, and killed deceased in an altercation arising out of deceased’s demand for a retraction of the epithet.
    3. Homicide <&wkey; 169(3) — Insult by brother relevant, though made before defendant participated in quarrel.
    Where defendant became a party to his brother’s quarrel with deceased after learning of an insulting epithet applied by his brother to deceased, ar.d killed deceased during an altercation occasioned thereby, the fact that the insult was spoken by his brother before defendant became a party to the quarrel does not render it inadmissible.
    4. Criminal law <©==>596(I) — Absence of witness whose testimony would be cumulative not ground for continuance.
    The absence of witnesses who testified at a former trial on behalf of defendant to facts to which several other witnesses did testify at the second trial, some of them more strongly for defendant than the absent witnesses, does not give a right to a continuance.
    5. Criminal law &wkey;>596(3) — Evidence witness did not hear threatening remark is not impeaching.
    In a prosecution for homicide, where continuance was asked because of an absent witness, evidence by the absent witness that he was present at the time and did not hear a remark by defendant to his brother concerning their pistols to which a witness for the state testified is not impeaching testimony only, but was admissible to negative the fact that accused made the remark.
    6.Criminal law <&wkey;603(9) — Testimony of absent witness held not to require continuance.
    Where it appeared only inferentially that an absent witness was in a position to hear i remark by accused to which a witness for the state testified, and the fact that he would testify that he heard no such remark was not supported by an affidavit of the witness, there was no showing of abuse by the trial court of his discretion in denying the motion for continuance because of the absence of such witness.
    Appeal from District Court, Hunt County; Wm. Pierson, Judge.
    Bill English was convicted of manslaughter, and he appeals.
    Affirmed.
    C. E. Sheppard, of Sulphur Springs, J. A. Dial, of El Paso, and O. C. Mulkey, of Commerce, for appellant.
    Clark & Sweeton, of Greenville, and Alvin M. Owsley, Asst. Atty. Gen., for the State.
   «MORROW, J.

The conviction is for manslaughter, and punishment fixed at confinement in the penitentiary for four years.

Complaint is made of the ruling of the court admitting in evidence testimony to the effect that during the game of basket ball Henry English, a brother of appellant, applied to the deceased an insulting epithet. The same ruling was upheld upon the former appeal. English v. State, 85 Tex. Cr. R. 450, 213 S. W. 634. The decision was not challenged upon motion for rehearing. It furnished the guide for the trial judge in the instant case. It becomes the law of the case, and, unless clearly wrong and harmful, its review upon this appeal is not admissible. Lee v. State; 67 Tex. Cr. R. 137, 148 S. W. 712; Perrett v. State, 75 Tex. Cr. R. 94, 170 S. W. 316; Manley v. State, 69 Tex. Cr. R. 502, 154 S. W. 1008; Betts v. State, 71 Tex. Cr. R. 204, 159 S. W. 1069. In deference to the forceful and urgent manner in which the point is presented, we have re-examined the question. The offensive language was uttered during the progress of a game of basket ball in which appellant and his brother, Henry English, were participants, and the deceased a spectator. Appellant was near enough to have heard the remark in the tone it was uttered, and whether he heard it was a question of fact. It is conceded that before leaving the grounds upon which the game was played appellant was told that the deceased had gone to arm himself and warned against him. It was also conceded that there had been ill feeling between Henry English and the deceased for some time, and that this was known to appellant. He also learned that his brother had used the insulting language towards the deceased. After the ball game he armed himself with a pistol. His brother was likewise armed, and, while appellant disclaimed knowledge thereof, the circumstances were sufficient to support the contrary inference by the jury. The deceased, his father, and several brothers were residents of the village of Brashear, at which the game took place, the father being a merchant, and after the game deceased and his brothers went to the business portion of the town, and so did appellant and his brother, though they lived in a different community.

Erom the state’s standpoint, the evidence discloses that while the parties were in the village the deceased called upon Henry English to retract the insulting language or fight. Henry English demurred upon the ground that he was outnumbered, by the deceased and his brothers, and was assured by the brother of the deceased that the fight would be a fair one. Henry English drew his pistol, the brother of deceased sought to disarm him, and the pistol was fired. The appellant was near by, and could have heard all that was said, though whether he did or not was a question of fact, he denying that he heard the retraction demanded. When the pistol was discharged the appellant shot the deceased, inflicting upon him three wounds, the state claiming that they all entered his back, the appellant claiming that the first shot entered his breast and was fired while the deceased was advancing, after demand that he stop, and that at the time the deceased, by his angry manner and gesture, impressed the appellant with the belief that he was about to draw and use a weapon. Appellant’s claim was that, when his brother declined combat upon the ground that the brothers outnumbered him, one of the brothers of the deceased urged him to go and get Henry, that he would stand between him and danger, and that the deceased and his brother advanced upon Henry, and as they were about to attack him he drew his pistol, and in a scuffle, in which two other brothers of deceased participated, the pistol was fired. The appellant explained that he armed himself and followed his brother to town to protect him against an unlawful attack.

The court embodied in his charge the law of actual as well as apparent danger, applicable to the defense of both the appellant and his brother, charged that retreat was not necessary, and that it was appellant’s right to continue to shoot so long as danger was apparent, and that throughout the matter was to be viewed from his standpoint at the time. He also charged upon request that, if appellant armed himself in anticipation of an unlawful attack upon his brother, no inference against him could be drawn from the fact that he was armed. The state of mind of Henry English, so far as it was known to the appellant, was a material inquiry, upon which there was available to the state all legitimate evidence. What the purpose of Henry English was in insulting the deceased, in arming himself, in refusing retraction, in proceeding to the place where a meeting was inevitable, in drawing his pistol and preparing to discharge it, were all questions of fact, as was also appellant’s knowledge or information upon the subject, and, •though he had not heard the insult given, he, after learning of it, accompanied his brother and killed the deceased, as claimed by appellant, to avoid injury to Henry English as well as to himself. Upon the issués involved and submitted to the jury, the proof that the insult was given was, in our judgment, clearly relevant. Guffee v. State, 8 Tex. App. 187. And the fact that the time appellant’s brother made the declaration was antecedent to any intent that may have been formed on the part of the appellant to become a party to his brother’s quarrel did not require its rejection. If the intent of Hefiry English was evil, and appellant, being aware of it, sought or agreed to give aid to his brother’s undertaking, he, having fired the fatal shot, would stand in the contest on the same footing as would his brother had he killed deceased. It follows from what, has been said that in our opinion the ruling made on the former appeal should be adhered to.

An application for continuance on account of the absence of several witnesses was made and overruled. The sufficiency of the diligence to secure the attendance of the absent witnesses is open to serious question. The witness Wildman was out of the state. It was averred that appellant became aware of his whereabouts only upon the day the case was called for trial, but the length of time that he had been gone is not stated, and there is no allegation touching the inability of appellant to have learned his whereabouts at an earlier date. The application is a subsequent one, and the testimony of the witness is cumulative. His testimony would have gone to show that on the day of the homicide the deceased, while in company with the witness and other parties, took a drink out of a bottle containing alcohol. The same fact was proved by two other witnesses. The witness Kirkpatrick, it appears from the application, had gone to Burkburnett, in Wichita county, about a week before the trial, and the witness Price was temporarily in Knox county. What effort was made to get in touch with these witnesses before the trial is not disclosed, nor does it appear that on their nonappearance when the case was called, or when the application for continuance was overruled, any effort was made to secure their attendance. The testimony of these witnesses was mainly upon the incidents immediately attending the homicide, and going to support the appellant’s theory that shortly before the first shot was fired the deceased was advancing in the direction of the appellant. This same fact was proved by a number of witnesses, some of them going much further in favor of the appellant than would the absent witnesses, according to the application for continuance, and, so far as the absent test!-mony would have supported appellant’s theory of this phase of the case, it was cumulative to a degree that would render a disturbance of the ruling of the trial court in denying the application unwarranted. Branch’s Annotated Texas Penal Code, § 322, and cases listed. Kirkpatrick, according to the application, would have al?o testified “that he was at Hay Mauney’s when Otho Byers was there, and that he did not hear any conversation there between Henry and Bill English in which Bill said to Henry, ‘You might as well carry the thing in your hand if you are not going to wear your coat,’ or anything to that effect; that at the time he reached Mauney’s they were fixing to leave.” The purpose of this testimony was to discredit the statement of the witness Byers to the effect that when Henry English started to town he was not wearing a coat, and the appellant remarked to him: “You just as well go up there with the damn thing in your hand as to go up there without a coat on.” The evidence of the absent witness to the effect that he did not hear the remark imputed to appellant, we think, is not to be characterized as impeaching testimony entirely. It would have been admissible as a circumstance to negative the fact that appellant made the remark. Tull v. State, 55 S. W. 61; Stewart v. State, 52 Tex. C'r. R. 100, 105 S. W. 809. It appears but inferentially, however, that the absent witness would have heard the remark, if made, and the fact that he would testify to it rests alone upon the averment in the application for a‘ continuance. The assignment on the subject in the motion for a new trial is not supported by the affidavit of the- witness. The probability that the alleged absent testimony would have been given and believed, and probably change the result, is not so patent as to warrant us in holding that the trial judge abused the discretion vested in him by the law in refusing to grant a continuance or a new trial. This is emphasized by the want of diligence to which we have referred.

The absence of errors requiring or authorizing a reversal disclosed in the record imposes upon the court the duty to affirm the judgment, and such is its order. 
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