
    JORDAN v. STATE.
    (No. 3910.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1916.)
    1. Criminal Daw @=1144^-Appeai>-Denial ob Motions — Presumption.
    Denial of motions for continuance and new trial must be presumed correct, there being no statement of facts or bills of exceptions showing the testimony heard, agreed to, approved by the trial judge, and filed in term time.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2730-2764, 2706-2771, 2774-2781, 2901, 3016-3037; Dec. Dig. &wkey; 1144.]
    2. Criminal Law @=594 — Continuance — Absent Witness.
    Refusal of continuance for absence of a witness, for a long time a fugitive from justice, is proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1321, 1322, 1332; Dec. Dig. &wkey;594.]
    3. Criminal Law @=594, 917 — Continuance —Absent Witness.
    There was no error in denying a continuance or a new trial based on absence of a witness, whore he makes affidavit that he did not know and would not testify what defendant in his application alleged he would.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1321, 1322, 1332, 2161, 2162; Dec. Dig. @=594, 917.]
    4. Homicide @=101 — Justification.
    Communication by deceased to defendant of the fact that he had had intercourse with defendant’s wife did not justify the killing.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 131; Dec. Dig. @=101.]
    5. Criminal Law @=633 — Conduct of Trial —Calling Names of Witnesses.
    That when the case was first called for trial, before a jury was impaneled or announcement of ready made, while both parties were calling their witnesses to determine whether they were ready, the name of defendant’s wife was called, shows no error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1450, 1451, 1453, 1454, 1459; Dec. Dig. @=633.]
    6. Criminal Law @=1037 — Argument of Prosecuting Attorney — Objection — Review.
    That defendant may complain of the statement of prosecuting attorney in argument that defendant’s wife was present, he should have asked an instruction for the jury not to consider it.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1691, 2645; Dec. Dig. @= 1037.]
    7. Criminal Law @=721% — Argument of
    Prosecuting Attorney — Wife as Witness.
    The prosecuting attorney may comment on the failure of defendant to produce his wife as a witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1673; Dec. Dig. @=721%.]
    Appeal from District Court, Scurry County; John B. Thomas, Judge.
    Edward. B. Jordan was convicted, and appeals.
    Affirmed.
    Woodruff: & Woodruff, of Sweetwater, and Smith & Spiller, of Snyder, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of the murder of his father, and his punishment assessed at 25 years in the penitentiary.

The original and supplemental record, as well as the statement of facts, are quite voluminous, especially the statement of facts. We have carefully read and considered all of them.

Appellant made a motion for a continuance to get two absent witnesses, his brother, H. C. Jordan, and Sid Hill. The state contested the motion. At the time, and before the trial, the court heard much evidence on this contest. In addition, the appellant made the overruling of his motion a ground of his motion for a new trial. This was also contested by the state. The court again heard evidence when hearing this contest of his motion for a new trial. There was no statement of facts agreed to, approved by the judge, and filed within term time of what this testimony was on either of said hearings by the court. Appellant has a bill of exceptions to the overruling of his motions, but this was filed long after the term at which he was tried had adjourned. •

It is the settled law of this state, held many times in the decisions of this court, that a statement of facts or bills of exceptions showing the testimony heard on such motion must be properly agreed to, approved by the trial judge, and filed in term time, and, if not, this court cannot consider it, but must, and does, presume that the action of the lower court was correct. Jones v. State, 163 S. W. 76; Graham v. State, 73 Tex. Cr. R. 28, 163 S. W. 726; Hoskins v. State, 73 Tex. Cr. R. 109, 163 S. W. 426; Forrester v. State, 73 Tex. Cr. R, 67, 163 S. W. 67; Roberts v. State, 180 S. W. 1080. Many other decisions ave cited in the opinions in these cases. It is unnecessary to collate them here.

Without discussing whether or not the diligence in this ease was sufficient, or that the testimony of either of said witnesses was material or probably true, or the insufficiency of the application to continue and motion for new trial on that ground was wholly insufficient on various other grounds, we will state that the record, the motions themselves, and the statement of facts on the trial of the case, without doubt, show that appellant’s brother, H. O. Jordan, was a fugitive from justice, and had been, with appellant’s knowledge, for perhaps two or three years before this ease was tried. On that ground alone the court’s refusal to continue on account of the absence of that witness and refusing a new trial was correct. Anderson v. State, 53 Tex. Cr. R. 344, 110 S. W. 54; Sims v. State, 45 S. W. 707; Sinclair v. State, 34 Tex. Cr. R. 453, 30 S. W. 1070; Deckard v. State, 58 Tex. Cr. R. 38, 124 S. W. 673.

The affidavit of the other witness, Sid Hill, was attached to the state’s contest of appellant’s motion for a new trial, and it shows that that witness did not know and would not testify what appellant alleged he would in his application for a continuance. Wilkins v. State, 35 Tex. Cr. R. 525, 34 S. W. 627; Henry v. State, 38 Tex. Cr. R. 306, 42 S. W. 559; Hinman v. State, 59 Tex. Cr. R. 29, 127 S. W. 221; and Singleton v. State, 57 Tex. Cr. R. 560, 124 S. W. 92.

The evidence was amply sufficient to show, and we think the jury therefrom could conclude, as they did, that the appellant killed his father with malice. The court therefore did not err in refusing to give, and should not have given, his special charge to the effect that the evidence was insufficient to base a conviction for murder and instructing the jury peremptorily to find him not guilty of that offense. Neither did the court err in refusing to give his special charge to the effect that, if they believed from the evidence that deceased communicated to him the fact that he had had illicit intercourse with his wife, this was within the eyes of the law adultery, and appellant was justified in killing his father, and to find him not guilty. Such charge was not the law. The court in bis charge submitted even more favorably than the evidence, and the law would justify every issue in appellant’s favor that was raised by the evidence, or even remotely suggested thereby.

Appellant has a bill which, together with the judge’s qualification and approval thereof, shows that, when the case was first called for trial, both parties proceeded to call their witnesses to determine whether they were ready. Among the witnesses called were several of the Jordan women. The court did not know that any one of them was appellant’s wife until his attorneys so stated to the court. At this time no jury had been impaneled and no announcement of ready made, and, when the motion for a continuance was heard and overruled, his wife’s name was not called as one of the witnesses. This, of course, shows no error.

Appellant has another bill, which alleges that the district attorney “stated in his argument to the jury that the defendant’s wife was then present in the courtroom,” to which he objected. The bill in no way shows the action of the court. The record shows appellant did not ask any charge instructing the jury not to consider this remark by the district attorney. It is the well-settled law of this state, as stated by Mr. Branch in his Criminal Law (section 61), as follows:

“State’s counsel may comment on the failure of defendant to produce his wife as a witness or upon any omissions in her testimony, if she testifies” — citing quite a number of cases decided by this court to that effect.

This bill shows no error whatever. Mooney v. State, 176 S. W. 56, and cases therein cited.

Nothing else is presented for review.

The judgment is affirmed.

DAVIDSON. J., not present at consultation. 
      ig^oFor other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes
     