
    (85 Tex. Cr. R. 475)
    BELL v. STATE.
    (No. 5421.)
    (Court of Criminal Appeals of Texas.
    June 18, 1919.)
    1. Criminal Law @=>595(6), 938(1) — Continuance — Absent Witness — Materiality — New Trial.
    There having been no lack of diligence, and it not appearing the testimony could be procured from other source, known to defendant, continuance should have been granted for absence of witness who would testify that a few days before the homicide deceased told him he was going to kill defendant with a gun he was carrying, and that he (witness) told this to defendant two days before tiie homicide; or at least a new trial should have been granted on materiality and inability to get it from any other source further appearing at the trial.
    2. Witnesses @=>269(13) — Cross-Examination — Matters Outside Original Testimony.
    The state on cross-examination of defendant’s witness, his wife,, should not have been permitted to ask her as to trouble between them, or as to statement she made to him, not connected with or germane to her testimony in chief.
    3. Witnesses @=>380(1) — Impeachment — Wipe oe Accused.
    Wife of accused being a voluntary witness for him may, like any other witness, be impeached by prior contradictory statements.
    4. Criminal Law @=>418(2) — Evidence-Statement oe Third Person to Depend-ant.
    Testimony that the night before the killing, when the three were together, witness told defendant he understood he had got a gun with which to kill deceased and witness, was admissible.
    5. Witnesses @=>374(2) — Impeachment—Evidence to Show Bias and Animus.
    To show bias and animus of defendant’s brother, the only eyewitness, other than himself, who testified for him, testimony that the brother told witness that he and defendant had it fixed to kill deceased, and if defendant did not he would, was admissible. ,
    6. Witnesses @=>389 — Impeachment — Contradictory Statement — Qualified Admission.
    Witness’ statement before the grand jury'is admissible, he having made only a qualified admission of having made it.
    7. Homicide @=>62 — Manslaughter — Adequate Cause — Settlement of Difficulties.
    In the absence of provocation occurring after defendant and deceased met and settled their differences, matters occurring prior thereto cannot constitute adequate cause to reduce the killing to manslaughter.
    Appeal from Criminal District Court, Bowie County; P. A. Turner, Judge.
    Earl Bell was convicted of murder, and he appeals.
    Reversed and remanded.
    R. H. Jones, of De Kalb, and Mahaffiey, Keeney & Dalby, of Texarkana, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted, in the criminal district court of Bowie county, Tex., of. the murder of George Petties, and his punishment fixed at ten years in the penitentiary.

Appellant made a second application for a continuance because of the absence of one Neeley and King. We do not think the diligence as to the witness Neeley was sufficient; King had been subpoenaed and was in attendance at. the former setting of the ease, and his absence was not known to appellant, as disclosed by said application, till the day of the trial. Being a second application, it must appear that his testimony could not be procured from any other source, known to the appellant. It was set up in the application that by said King it would be shown that a few days prior to the killing he met deceased carrying a gun, and asked him what he was going to do with it, and deceased told him he was going to kill a negro with it; that King asked deceased what negro, and he said, “Earl Bell,” and further said he was going to kill him because of Bell’s wife. Said application further showed that King would testify that he communicated these facts to the appellant two days before the homicide. We have searched the record carefully to see if this evidence, either in detail or in substance, was given by any other witness, but failed to find any-evidence thereof. The materiality of this testimony further appears from the fact that appellant and one other eyewitness to the homicide swear that, just before the appellant shot deceased, deceased threw his hand back to his hip as' though he was going for his gun. Wilson v. State, 18 Tex. App. 576; Alexander v. State, 25 Tex. App. 260, 7 S. W. 867, 8 Am. St. Rep. 438; Reeves v. State, 34 Tex. Cr. R. 483, 31 S. W. 382. The continuance should have been granted, or the court should have granted a new trial, upon the discovery of the materiality of said testimony and the inability to procure same from any other source.

Appellant’s wife was Introduced as a witness in his behalf to show insulting conduct on the part oí the deceased toward her. On direct examination she did not testify anything regarding any trouble between herself and her husband or any separation over any woman. This being true, it was error to permit the state to examine her as to this or any other matter not connected with or germane to her testimony in chief. This applies also to the question asked her by the state, and coniplained of in appellant’s bill of exception, as to her statement to her husband that she dreamed that deceased had said certain things about her husband and Cora Waller.

The matters complained of in appellant’s bills of exceptions Nos. 6, 8, 11, 12, and 13 do not constitute reversible error. When the wife of one accused of crime voluntarily takes the stand in his behalf, she may be impeached by proof of contradictory statements made to third parties just as any other witness. Taylor v. State, 74 Tex. Cr. R. 3, 167 S. W. 56; Roberts v. State, 74 Tex. Cr. R. 150, 168 S. W. 100; Link v. State, 73 Tex. Cr. R. 82, 164 S. W. 987.

No error was committed in allowing witness Swink to testify that on the night before the killing he said to appellant that he understood appellant had [purchased a gun to kill the witness and deceased with. Said witness, appellant, and deceased were together, and what they said relative to the trouble between deceased and appellant was admissible.

Nor can we say that the testimony of the witness Barber, that prior to the homicide Albert Bell, a brother of appellant, told him that he and appellant had it fixed to kill deceased, and if appellant did not he would, was inadmissible. The killing took place immediately in front of Albert Bell’s house in a public road, and Albert was the only eyewitness who testified for the appellant besides himself. The court’s explanation' of this bill shows that a proper predicate was laid while Albert was on the witness stand, and the testimony was restricted in the charge of the court to the question of impeachment. If true, it strongly tended to affect the bias and animus of Albert Bell as a witness in the case.

The written statement of Albert Bell before the grand jury about which he was asked was admissible. The witness, when on the stand testifying with regard to said statement, made a qualified admission of having given such testimony while a witness before the grand jury. Under all the authori-’ ties cited and known, when there is a direct or qualified denial or a qualified admission, proof may be made of the contradictory statements. Only a direct unqualified admission deprives the party, offering to make such proof, of' the right to introduce same. Bice v. State, 51 Tex. Cr. R. 136, 100 S. W. 949; Dean v. State, 47 Tex. Cr. R. 245, 83 S. W. 816.

We do not think the charge of the court on manslaughter open to the criticism directed thereat. It was shown that on the night preceding the homicide appellant and deceased met and agreed to drop their troubles; that they were close enough to touch each ■other, and the witness said their hands went up, but it was dark, and he could not say whether they shook hands or not. On the next morning between 10 and 11 o’clock, deceased was riding along the public road on a mule, and appellant shot and killed him. No conversation was had between them at the time, except that appellant ordered deceased to stop, and deceased begged him not to shoot. Appellant testified fully and made no claim of any insult or communication regarding anything of that sort, subsequent to the meeting between the two men the night before. Under our decisions, there may be a provocation occurring subsequent to the last meeting of the parties before the homicide, which provocation may perhaps not be sufficient of itself, but-may revive other former provocations, and the jury may be permitted to consider them all together in determining if there be adequate cause; but it is believed that when there was adequate cause existing, but the parties met and settled their differences, if nothing occurred thereafter and prior to the homicide to in any wise create or give any new ground for passion,' then the court is justified in telling the jury that those matters which occurred prior to said meeting will not be deemed adequate cause.

There were other objections to the court’s charge which we do not think well taken.

The errors complained of as occurring during the argument of the district attorney will not occur upon another trial.

For the errors mentioned, the judgment of the trial court will be reversed, and the cause remanded. 
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