
    MEDFORD v. STATE.
    (No. 5846.)
    (Court of Criminal Appeals of Texas.
    March 16, 1921.)
    1. Criminal law <&wkey;600(3) — To avoid continuance state must admit truth of testimony of absent witnesses.
    An application for a continuance because of the absence of witnesses which complies with the statute ¿nd shows such reason for continuance or postponement as the trial court would be bound to grant cannot be defeated by an admission on the part of the state that the absent witnesses named in the application would, if present, give the testimony set out in the application; it being necessary that the admission embrace not only the fact that the witnesses would give the testimony, but that the facts were true.
    2. Criminal law <&wkey;898 — Introduction of written testimony of absent witness no waiver of motion for continuance.
    Introduction of written testimony of absent witnesses was not a waiver by accused of h'is motion for a continuance, where court asked state’s counsel if he intended to offer to permit the use of the written testimony before the jury, and received an affirmative reply, and informed the counsel for the accused, in the absence of jury, that, in the event he failed to road the testimony, he would permit comment upon such failure in argument, accused protesting the ruling and asserting his continued reliance upon his motion for continuance.
    
      3. Homicide <&wkey;!92 — Evidence of previous transactions admissible to show who was aggressor.
    There being a well-defined and controverted issue concerning who was the aggressor in the beginning of the fight in which accused took the life of the deceased, it was proper for the state to introduce testimony of a difficulty between the parties two years prior to the homicide in which there were blows passed, threats made, and it was claimed accused was prevented from shooting by the efforts of his wife.
    4. Criminal law <&wkey;450— Distance that shotgun in hands of deceased would seriously injure proper subject of inquiry.
    In a homicide case, where accused killed deceased with a rifle, claiming that he shot in self-defense, in that deceased was firing at him with a shotgun, and that some of the shot hit him, the distance that the shotgun would kill or seriously injure one became the proper subject of inquiry, although opinion testimony .as to such matters should not be used to deprive the accused of the privilege of having the jury solve the question of self-defense by consideration of the matters as they reasonably appeared to him at the time.
    5. Homicide <&wkey;348 — Admission of evidence held not reversible error.
    In a homicide case, where plea was self-defense, proof by son of deceased that his father had purchased the shotgun which he was using at the time of the homicide for another son held not of such importance as to require a reversal of the judgment of conviction.
    6. Homicide <&wkey;!93 — Evidence that deceased purchased shotgun for son held inadmissible.
    In a homicide ease, where plea was self-defense, deceased having fired a shotgun at accused, evidence that deceased had purchased the shotgun for one of his sons was improperly admitted, where the matter was unknown to the accused, as it tended to impair his rights of self-defense. ,
    7. Homicide &wkey;300(l) — Court erred in not giving instruction upon presumption arising from use of deadly weapons by decedent.
    In a homicide case, there being evidence that deceased threatened to kill .accused and fired at him once and was in the act of firing again when he was shot, an appropriate instruction upon the presumption arising from the use of deadly weapons should have been given.
    8. Homicide <&wkey;300( 12) — Court erred in instruction as to right to continue to shoot as long as danger continued.
    In a homicide ease, where defendant used rifle and deceased a shotgun, and there was evidence that during the encounter both the accused and deceased changed their positions, the state contending that between the first and second shots fired by the accused the movement by the deceased had the effect to increase the distance between the parties, court erred in failing to instruct the jury upon the phase of the law of self-defense which accords the accused the right to continue to shoot so long as the danger continues.
    Appeal from District Court, Coryell County; J. H. Arnold, Judge.
    I. W. Medford was convicted of murder, and appeals.
    Reversed and remanded.
    McClellan & McClellan, of Gatesville, A. R. Eidson, of Hamilton, and Mears & Watkins, of Gatesville, for appellant.
    H. E. Bell, of Gatesville, and Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Judgment is for murder. Punishment fixed at confinement in the penitentiary for 10 years.

R. J. Pieper was shot and killed by appellant. The facts are stated in the report of the former appeal. Medford v. State, 216 S. W. 175.

Shots were exchanged between the deceased and the appellant, the former using a shotgun and the latter a rifle. The occurrence took place in the presence of the members of the family of the parties respectively. The version given by the state’s witnesses materially differs from that of the appellant testifying in his own behalf. On two previous trials, resulting more favorably to the appellant than the present one, his wife and son testified.

A continuance was sought because of the absence of these two witnesses. The sufficiency of the application as to diligence and materiality is not open to question. It was the first application, the issues were sharply drawn. There is no question but what the appellant’s wife and son were eyewitnesses, and no ground developed upon which the court would have been authorized, as a matter of law, to treat the truth of their testimony as improbable. To avoid the continuance the state’s counsel offered to permit the use of the report of the testimony of the witnesses upon the former trial which was the same as that set out in the application. The state’s counsel did not offer to admit the truth of the testimony, but declined to do so. The appellant refused to waive his continuance, and the court overruled his motion.

An application for a continuance because of the absence of witnesses, which complies with the statute and shows such reason for continuance or postponement as the trial court would be bound to grant, cannot be defeated by an admission upon the part of the state that the absent witnesses named in the application would, if present, give the testimony set out in the application. To have the effect desired, it would be necessary that the admission embrace not only the fact that the witness would give the testimony, but that the facts were true. This is the practice in other jurisdictions. Ruling Case Law, vol. 6, p. 569; Madison v. State, 6 Okl. Cr. 356, 118 Pac. 617, Ann. Gas. 19130, 484, and note. The rule received the sanction of the Supreme Court of this state in the early case of Hyde v. State, 16 Tex. 458, 67 Am. Dec. 630, and has been observed, so far as we are aware, without departure, by that court and this one. Skaro v. State, 43 Tex. 88; Hackett v. State, 13 Tex. App. 412; Francis v. State, 55 S. W. 489; Purvis v. State, 52 Tex. Cr. R. 316, 106 S. W. 355; Davis v. State, 65 Tex. Cr. R. 429, 144 S. W. 939; Roberts v. State, 65 Tex. Cr. R. 62, 143 S. W. 614; Davis v. State, 68 Tex. Cr. R. 400, 152 S. W. 1097; Branch’s Ann. Penal Code, § 325.

In cross-examination of the appellant, the state’s counsel asked some leading questions assuming that certain evidence given by the state correctly related the facts. In reply the appellant denied the truth and stated:

“My wife testified she didn’t, and my son testified he didn’t.”

The counsel for the state retorted:

“We object to what he testified about what his wife and son testified. Their testimony on a former trial is in the statement of facts, and we are willing that it all be read to the jury.”

The appellant’s counsel stated:

“His inference is plain before the jury that we have some fear of that testimony. The court knows our position, that we are entitled to be confronted with our witnesses. We object to his insinuating what would be contrary to truth.”

The court asked the state’s counsel if he intended to offer to permit the use of the written testimony before the jury and received an affirmative reply, and informed the counsel for the appellant, in the absence of' the jury, that, in the event he failed to read the testimony, he would permit comment upon such failure in argument. Appellant, protesting the ruling and asserting his continued reliance upon his motion for continuance, introduced the written testimony of the absent witnesses. His conduct in so doing is relied upon by the state as a waiver of his motion for a continuance, to which he would otherwise have been entitled.

We are of the opinion that the sanction of this view would nullify the rule to which we have referred. The Constitution provides that one accused of crime “shall be confronted with the witnesses against him” and “shall have compulsory process for witnesses in his favor.” Availing himself to these rights, he brought himself in the present instance within the requirements of the law which required the court to defer the trial looking to securing the witnesses. The law pointed out the character of the admission that the state must make to deprive the appellant of the right to further time to secure testimony in his favor, namely, the admission of the truth of the absent testimony binding to a degree that it might not be controverted. Davis v. State, 52 Tex. Cr. R. 333, 107 S. W. 855; Roberts v. State, 65 Tex. Cr. R. 62, 143 S. W. 614.

The state’s counsel having without qualification declared that the appellant might use the absent testimony, and indicated with the sanction of the court that his failure to do so might be used against him in argument, appellant’s rights were not prejudiced by using the testimony thus made available and thereby endeavoring to minimize or obviate the erroneous adverse ruling of the court. It has been often said that comment upon the failure of the accused to use testimony available to him, but not to the state, was permissible. Mercer v. State, 17 Tex. App. 466; Brandi’s Ann. Tex. Penal Code, § 373, and cases .listed. Whether the appellant was obliged to use the absent testimony under the circumstances or not, it does not follow that by making use of the testimony he abandoned his right to a continuance of the case. An analogous ease is Adams v. State, 19 Tex. App. 1, wherein it is held that the right to continue was not waived by the refusal of the accused to accompany the jury to the home of the absent witness, that her testimony might be given. A question similar to that in hand was before the court in the case of McMillan v. State, 65 Tex. Cr. R. 319, 143 S. W. 1174. On that occasion the state offered in evidence the stenographic report of the testimony of a witness. It was excluded upon the appellant’s objection and comment made upon it in argument. Presiding Judge Davidson disposed of the matter in the following language:

“This should not have occurred, and upon another trial this should be avoided. The court had overruled the application for a continuance for Mr. Brown, and appellant assigns that as error and reserved a bill of exceptions. The state had no right to offer the stenographic report'of the testimony of the absent-witness either to defeat the application or for any other purpose before the jury or the court, unless he had first admitted that the facts stated in the application were true.”

The state introduced the testimony of a difficulty between the deceased and appellant some two years prior to the homicide. In this episode there were blows passed, threats made, and, according to some of the testimony, a knife drawn by the appellant; and it was claimed the appellant was prevented from shooting on that occasion by the efforts of his wife. The ill feeling engendered seems to have continued and been mutual.

Observing their boys fighting on the occasion of the homicide, both the appellant and deceased went to their respective homes and armed themselves and engaged in threats and denunciations, as well as exchange of shots. Appellant claims that some of the state’s witnesses testified that the deceased fired first, though it is apparent that the firing took place almost at the same moment. Appellant claims that some of the shots from the gun of the deceased struck him, and that he changed his position prior to the second shot; that the deceased also changed his position, reloaded his gun, and was in the act of firing when the fatal shot was fired.

There being a well-defined and controverted issue concerning who was the aggressor in the beginning of the fight in which the deceased lost his life, we think the rule excluding the details of previous transactions was not transgressed in the instant case. The evidence introduced went to show the words and conduct of each .of the parties on the former occasion and its bearing upon the state of mind of both the appellant and deceased was such as to render the proof available. The words and acts of each of the participants in the former encounter were known to them at the time they engaged in the conflict which resulted in the death of the deceased, and were such as to aid the jury in solving the controverted issue as to which was in the wrong. Under such conditions we do not understand the law to require that such testimony be rejected. Pratt v. State, 53 Tex. Cr. ft. 282, 109 S. W. 138; Morrison v. State, 37 Tex. Cr. R. 601, 40 S. W. 591; Waters v. State, 54 Tex. Cr. R. 327, 114 S. W. 628; Carr v. State, 41 Tex. Cr. R. 381, 55 S. W. 51.

The distance that the shotgun would kill or seriously injure one may, under the same circumstances, become the proper subject of inquiry. Yzaguirre v. State, 48 Tex. Cr. R. 515, 85 S. W. 14; 21 L. R. A. (N. S.) 500, note.

If upon another trial the sheriff or other witness is called upon to give his opinion touching the range of the shotgun in the possession of the deceased, it should, upon request, be limited. If admissible, it was upon the issue of the character of the weapon as used, whether deadly or otherwise (Yzaguirre v. State, 48 Tex. Cr. R. 515, 85 S. W. 14), and to rebut the testimony of the appellant that some of the shots struck him. It should not be used to deprive the appellant of the privilege of having the jury solve the question of self-defense by consideration of the matters as they reasonably appeared to him at the time. Carr v. State, 41 Tex. Cr. R. 385, 55 S. W. 51; Roberts v. State, 48 Tex. Cr. R. 378, 88 S. W. 221; Everett v. State, 30 Tex. App. 682, 18 S. W. 675; Bode v. State, 6 Tex. App. 427.

We would not regard the proof that is made by Monroe Pieper, son of the deceased, that his father had purchased the shotgun which he was using at the time of the homicide for his son Richard, as under the facts in the case of such importance to require a reversal of the judgment. It being a matter unknown to the appellant, it could, upon well-defined principles, not be used to impair his rights of self-defense. Upon another trial it should be excluded. Woodard v. State, 51 S. W. 1122; Adams v. State, 44 Tex. Cr. R. 64, 68 S. W. 271; Cook v. State, 71 Tex. Cr. R. 532, 160 S. W. 467; Branch’s Crim. Laws of Texas, §§ 477, 478.

While criticized in many particulars, we deemed the charge of the court in connection with the special charges given at the request of the appellant an accurate presentation of the law applicable to the evidence except in two particulars. There being evidence that the deceased had threatened to kill the appellant and fired at him once and was in the act of firing again when he was shot, an appropriate instruction upon the presumption arising from the use of deadly weapon should have been given. Smith v. State, 57 Tex. Cr. R. 455, 123 S. W. 698. In this connection we would say that the state would have a right to have the jury determine whether, as viewed from the appellant’s standpoint, the gun in use by the deceased was a deadly weapon. There was evidence that during the encounter both the appellant and deceased changed their positions ; the state contending that between the first and second shots fired by the appellant the movement by the deceased had the effect to increase the distance between the parties. We believe the circumstances were such as made it incumbent upon the court, responding to appellant’s request, to instruct the jury upon the phase of the law of self-defense, which accords the accused the right to continue to shoot so long as, viewed from his standpoint, the danger continues. Clark v. State, 56 Tex. Cr. R. 295, 120 S. W. 179; Branch’s Tex. Crim. Law, § 452.

Because of the errors pointed out, the judgment is reversed, and the cause remanded. 
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