
    SWILLEY v. STATE.
    (No. 3103.)
    (Court of Criminal Appeals of Texas.
    April 29, 1914.)
    1. Criminal Law (§ 1090) — Appeal—Bill op Exceptions — Necessity—Motion for Continuance.
    Where no bill of exceptions was reserved tc the action of the trial court in overruling accused’s motion for continuance on account of the absence of witnesses, such ruling cannot be reviewed.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2S22, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    2. Witnesses (§ 331%) — Impeachment—Former Testimony of Absent Witness — Witness Sick or Temporarily Absent.
    In a prosecution for homicide, where the defendant had made an affidavit as to the testimony that would be given by three absent witnesses, it was error to compel him to testify on cross-examination as to what he had heard those witnesses testify at the inquest, and at a hearing on habeas corpus, where two of the witnesses were shown to be kept away from the trial by sickness, and the other was temporarily absent from the state; the former testimony of witnesses being- inadmissible to impeach the defendant’s credibility, or for any other purpose, where they are alive and within the jurisdiction of the court.
    [Ed. Note. — For other cases, see Witnesses, Dec. Dig. § 33iy2.]
    3. Criminal Law (§ 721) — Cross-Examination of Accused — Subject of Inquiry.
    It was improper for the district attorney to ask accused whether he had testified at a hearing on habeas corpus; since he had the right to testify or not at such hearing, as he saw proper, and his failure so to do was not a circumstance against him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1672; Dec. Dig. § 721.]
    4. Criminal Law (§ 822) — Trial—Instructions — Charge Considered as a Whole.
    Where the defendant claimed justifiable homicide on the ground that deceased was attempting to rob him,, and also on the ground of self-defense, a charge, one paragraph of which seemed to require the jury to believe both grounds of justification existed before they could acquit, was not erroneous, where the charge, considered as a whole, was not susceptible of that construction.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1990, 1991, 1994, 1995, 3158; Dec. Dig. § 822.]
    Appeal from District Court, Jasper County; A. E. Davis, Judge.
    John Swilley was convicted of crime, and be appeals.
    Reversed and remanded.
    Bisland, Adams & Bruce, of Orange, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

The offense alleged in the indictment was committed in Orange county, and tried in Jasper county on a change of venue.

When the case was called for trial, appellant moved to continue the case on account of the absence of three witnesses, J. P. Crain, Mrs. M. J. Reed, and Albert Cram, all of whom aré stated to reside in Orange county, Cram being alleged to be temporarily out of the state. The record discloses that Crain and Mrs. Reed did live in Orange county, and were absent on account of sickness. As there was no bill of exceptions reserved to the action of the court in overruling this motion, it is not presented in a way we can review the matter.

Appellant does not deny that he killed Ed Rosenbaum, but admits he did so, stating that while he was asleep Rosenbaum came into his room and had stolen his purse from his pocket; that he awoke and grappled with Rosenbapm, and charged him with the theit, which Rosenbaum denied; that a struggle ensued, when Rosenbaum rushed out of the door, grabbed a shotgun sitting near the door, and attempted to shoot him, when he (appellant) shot deceased with a Winchester, thus presenting two grounds of justifiable homicide, one self-defense, and the other robbery and killing the thief while in the presence of the person robbed. Appellant in his application stated facts he expected to prove by the absent witnesses which would tend to support his theory of self-defense; that is, they arrived at the scene of the homicide shortly after the shooting, and they saw a gun lying on the ground where appellant testified deceased was when he attempted to shoot him.

Of course, this application for a continuance was not admissible in evidence on the trial of the case for appellant for any purpose, nor did he offer it in evidence. The jury should not and did not know anything of the contents of such application until the happening of the hereinafter cited occurrences. Appellant took the stand in his own behalf, and testified to a state of facts tending to support the above two pleas of justification. On cross-examination, the prosecuting officers were permitted to read in the presence' of the jury, a portion of appellant’s application, and ask appellant if he was not present at the inquest proceedings and hearing of this case on habeas corpus and heard the witnesses testify on one or the other two proceedings, and then, over objection, he was compelled to tell what he heard these witnesses testify at these trials. We do not deem it necessary to state all this reproduced testimony; it is sufficient to state that a portion thereof was highly injurious to appellant, and in direct conflict with a portion of his testimony on this trial. Testimony of absent witnesses given at a former trial cannot be reproduced or put in evidence, except in those cases where the witnesses have since died, gone beyond the jurisdiction of the court, or kept away by the connivance of the defendant. The record shows that two of the witnesses were then in Orange county, sick, and within the jurisdiction of the court. The other witness was only temporarily absent from the state, his family still residing in Orange county. Under such circumstances, testimony given at either the habeas corpus trial or the inquest could not be reproduced by defendant, or any other person, and the fact that he had applied for a continuance on account of their absence did not authorize the state to reproduce their testimony on this trial. These matters are complained of in several bills of exception, but we have passed on them jointly, for, under the record in this case, none of 'the reproduced testimony was admissible. And, of course, the testimony being inadmissible, the charge in regard thereto was improper. It was not admissible to affect the credit of defendant, nor for any other purpose; the witnesses being alive and within the jurisdiction of the court.

Again, it was improper for the district attorney to ask the witness whether or not he testified at the habeas corpus trial. He had the right to testify or not, as he saw proper, and the fact he did not deem it necessary nor advisable to testify on the habeas corpus hearing would not be a circumstance against him. Brown v. State, 57 Tex. Cr. R. 269, 122 S. W. 567, and eases there cited.

Appellant complains that the charge, taken as a whole, would bear the construction that the court, instead of instructing the jury that if they believed either of the defensive theories' of justification, required them to believe both, before he would be entitled to an acquittal. While in one paragraph of the court’s charge it would seem that the criticism was just, yet the charge, taken as a whole, we do not think, would bear this construction, nor would the jury be misled wherein the court instructed the jury that, if they believed the robbery theory, they would acquit, “and,” if they believed the self-defense theory, they would acquit. Perhaps if the word “or” had been used in the beginning of this second paragraph the meaning would be more clear, and on another trial the court will so word his charge as to be free from this criticism.

The judgment is reversed, and the cause is remanded.  