
    FLORENCE v. STATE.
    (No. 11368.)
    Court of Criminal Appeals of Texas.
    Feb. 29, 1928.
    Rehearing Denied April 11, 1928.
    1. Criminal law &wkey;>6l4(3) — Denying application for second continuance for absent witnesses, where defendant applied for process for witnesses nearly two years after return of indictment, held not error.
    Where indictment was returned in August, 1925, and in October, 1926, defendant’s first application for continuance was granted and case was again continued and called for trial on June 9, 1927, overruling defendant’s second application for continuance for absent witnesses, where he averred in application that process had been issued for both witnesses on May 24, 1927, and again on June 6, but no return was made, hold not error, since defendant failed to show sufficient diligence in securing presence of witnesses.
    2. Criminal law ⅞=»1134(10) — In passing on question of error in refusing continuance, court looks to evidence adduced on trial.
    In. passing on question of alleged error in overruling application for continuance, Court of Criminal Appeals looks to evidence adduced on trial.
    3. Criminal law t&wkey;>396(2) — Where accused testified to part of conversation with officer while under arrest, state could introduce whole of declaration made at same time on same subject (Code Cr. Proc. 1925, arts. 727, 728).
    Where accused charged with aggravated assault had testified to part of conversation not res gestas between himself and officers while 'under arrest, state, under Code Cr. Proc. 1925, art. 728, had right to introduce whole of his declaration made at same time and upon same subject, notwithstanding article 727, relating to use of confessions made while under arrest.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Dallas County; Grover Adams, Judge.
    Earl Florence was convicted of aggravated assault, and he appeals.
    Affirmed.
    J. E. Newberry and W. R. King, both of Dallas, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is aggravated assault; the punishment confinement in jail for two years.

The facts relied upon by the state were these: J. M. Denman was approximately 70 years old, weighed about 130 pounds, and was five feet two inches tall. He was a flagman in the city of Dallas. On the 1st day of August, 1925, he was on duty at the railroad tracks near a flag station. Appellant and another man were crossing the railroad tracks in a truck when Mr. Denman attempted to stop them; His signal sign struck against the truck. At the time a train was approaching the street. Appellant proceeded across the street, stopped his truck, and went back across the track to the point where Mr. Den-man was standing and struck him in the face with his fist. Mr. Denman sank to the ground with blood coming from his mouth and nose. A crowd congregated at the point of the difficulty, and appellant got in his car and drove away. ‘ Mr. Denman was taken in an ambulance to the hospital. He died before reaching the hospital. At the time of the difficulty appellant was 37 years old, five feet eight inches tall,'weighed 185 or 190 pounds, and was a strong, vigorous man.

Appellant-contended that he did not see deceased when he attempted to stop him, and that after he learned that he had passed the stop-signal he went back to deceased for the purpose of making an explanation. He stated that deceased used a great deal 'of profanity, became excited, and sank to the ground. He denied that he struck deceased, and contended that the death of deceased was due to heart attack brought about by excitement.

The first bill of exception complains of the action of the trial court in overruling appellant’s second application for a continuance. The indictment was returned against appellant on the 28th of August, 1925. On the 18th of October, 1926, when the ease was called for trial, the state announced ready,. appellant’s first application for a continuance was granted, and the case reset for November 29, 1926. On November 29, 1926, the case was again continued and set for trial on June 6, 1927, and at that time passed by the court to June 9, 1927. When the casé was called for trial on June 9th, appellant filed his application for a continuance based on the absence of Dr. Mc-Adams and Dr. Knight. He averred in his application that process had been issued for both of said witnesses on May 24, 1927, returnable June 6th, next. No return was made of either of said subpcenas. After said witnesses failed to appear on June 6th, process was on said date again issued for them but was never returned. No circumstances that would have justified appellant in waiting nearly two years after the return of the indictment before applying for process for the witnesses were shown. Under such conditions, we are constrained to hold that appellant failed to show sufficient diligence in securing the presence of his witnesses. Horne v. State, 104 Tex. Cr. R. 358, 284 S. W. 557; Walker v. State, 105 Tex. Cr. R. 141, 287 S. W. 497.

Appellant based his motion for a new trial, in part, on the overruling of his application for a continuance. The state controverted the motion and attached to the controverting plea the affidavits of the witnesses upon whose absence the application for a continuance was based. These affidavits showed that neither of said witnesses would testify to all of the facts set forth in the application for a continuance. Appellant alleged in the said motion, in substance, that the absent witnesses would testify that they made a careful examination of the deceased before he died; that there were no marks of violence on his body; that there was no blood about his nose or mouth; and that deceased, in the opinion of the witnesses, died from a heart stroke or high blood pressure brought about by anger or excitement. The affidavits of the witnesses show that appellant was bleeding at the mouth and nose; that there was no evidence of bruises or abrasions on the exposed surface of his body and head; and that they did not remove his clothes to examine him. Dr. Mc-Adams’ affidavit was further to the effect thkt he was of the opinion that deceased died from heart trouble resulting from excitement aroused by the fight, and not by any direct violence. Looking to the evidence adduced on the trial, we are of the opinion that if appellant had shown diligence in securing the presence of the witnesses, the trial court nevertheless did not err in overruling the motion for a new trial. In passing on such question this court looks to the evidence adduced on the trial. Branch’s Annotated Penal Code, § 305; Walker v. State, supra.

Bill of exception No. 2 presents the following occurrence: While appellant was sitting in his automobile in front of his house .he was approached by officers and asked if his name was Earl Florence. He replied in the affirmative, and one of the officers stated to him that “the old man,” with whom he (appellant) had had the difficulty that day, had died. Appellant testified qn direct examination that he thereupon stated:

“I said I was very sorry, and I said I didn’t have anything to do with hurting him, and they said he had died anyway.”

The state then called the officer as a witness and asked him what appfellant told him on the occasion in question. The officer testified that appellant asked him if deceased was dead, and that when he answered in the affirmative, appellant stated that he was sorry, that he did not know why it happened like it did, and that he just lost his temper and had a fight up there. Appellant objected to such testimony on the ground that he was under arrest at the time. The bill of exception shows that appellant was under arrest and that the statement was not res gestae. In qualifying appellant’s bill the court states that the testimony objected to by appellant was admitted because of the fact that on his direct examination appellant testified to a part of the conversation between himself and the officers. We are inclined to the view that the statement objected to by appellant was admissible. Article 728, O. O. P. 1925, provides:

“When part of an act, declaration or conversation or writing is given in evidence by one party, the whole on the same subject may be inquired into by the other, as, when a letter is read, all letters on the same subject between the same parties may be given. When a detailed act, declaration, conversation or writing is given in evidence any other act, declaration or writing which is necessary to make it fully understood or to explain the same may also be given in evidence.”

We quote from Copper v. State, 94 Tex. Cr. R. 199, 250 S. W. 185, as follows:

“While Brooks was testifying for the state he was asked on cross-examination what he said to appellant after the officers came, and he replied, T said, Bill Copper, you’re a dirty, lowdown s- of a b-, any man who would call another out and shoot him like you did me.’ Afterward, and while Sheriff Malone was on the stand for the state, he was asked relative to what he heard appellant say at the time Brooks came up, and over objection was allowed to state that appellant said to Brooks, T went down there 'to kill you;’ the objection being that appellant was under arrest and unwarned at the time. The ruling of the trial court in admitting said evidence is referable to article 811, C. C. P. [now article 728], which declares that, if part of a conversation be introduced by one party to a controversy, all of said conversation relating to the same subject-matter, or shedding light on it, may be introduced by the opposite party. The matter is not made quite clear by the bill of exceptions, but it appears that a statement by appellant that he went down to Brooks’ to kill him would be admissible under the above rule as shedding light upon the statement of Brooks that any man who would call another out and shoot him as appellant did, was appropriately described by the language used.”

See, also, Venn. v. State, 105 Tex. Cr. R. 19, 284 S. W. 955; Livingston v. State, 103 Tex. Cr. R. 372, 280 S. W. 802; Ruedo v. State, 101 Tex. Cr. R. 651, 277 S. W. 117.

Finding no error, the judgment of the trial court is affirmed..

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

Appellant insists that in the original opinion the inhibition against the receipt in evidence of a declaration of the accused while under arrest in the absence of compliance with the confession statute (article 727, C. O. P. 1925) was violated, and cites Hext v. State, 104 Tex. Cr. R. 46, 282 S. W. 242, and precedents to which reference is made therein. The authorities cited are to the effect that the state, upon its own initiative, may not use against the accused declarations made while under arrest which are not res gestae, which are not rendered inadmissible by compliance with the terms of article 727, supra, and which are not embraced in the exceptions therein named. In the present instance, it was the appellant, and not the state, who introduced the declarations made by him while under arrest. He having done so, it was clearly the right of the state under article 728, O. O. P. 1925, to introduce the whole of his declaration made at the same time and upon the same subject. Such a construction of the statute is supported by the authorities cited in the original opinion, and also others collated in Vernon’s Tex. O. O. P. 1925, vol. 2, p. 840.

The motion for rehearing is overruled. 
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