
    McKELVEY v. STATE.
    (Court of Criminal Appeals of Texas.
    March 5, 1913.
    Rehearing Denied April 16, 1913.)
    1. Criminad Law (§ 595) — Continuance— Absence or Witnesses.
    Where all the witnesses testified that a keg of beer was on the premises at the time and prior to the shooting of decedent, a denial of a continuance on the ground of the absence of a witness who would testify that the proprietor of the premises shortly after the killing hired a third person to take a beer keg from the premises and hide it was not erroneous.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. § 595.]
    
      2. Criminal Law (§ 597) — Continuance-Absence oe Witnesses.
    Where accused and the eyewitnesses to a homicide testified, but none of them stated that the eyewitnesses were so intoxicated that they could not remember what occurred, and third persons present with the witnesses just prior to the shooting were in court, but none of them were called to prove the fact of intoxication of the witnesses, a denial of a continuance on the ground of the absence of a witness who would testify that the witnesses were so intoxicated that they could not know what took place was not erroneous.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1331, 1332; Dec. Dig. § 5$7.]
    3. Criminal Law (§ 589*) — Witnesses (§ 48) — Competency — Indictment — Continuance.
    Witnesses are competent to testify on the trial of an offense, though they are indicted for a separate and distinct offense, and it is not necessary to postpone the trial until the witnesses have been tried or to hear evidence to determine whether they are guilty of the offense charged.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1315, 1319; Dec. Dig. § 589; Witnesses, Cent. Dig'. §§ 109-115; Dec. Dig. § 48.J
    4. Criminal Law (§ 407) — Evidence — Admissions— Silence.
    Where the state claimed that accused walked into the room where decedent and third persons were, and immediately shot decedent, while appellant claimed that decedent attacked him and grabbed him, and that during the struggle accused got out his gun and shot decedent, the testimony of an eyewitness that accused made no reply to a question put to him by the witness immediately after the shooting as to why he shot decedent was admissible to throw light on the transaction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 898-902, 949, 968, 970, 971; Dec. Dig. § 407.]
    5. Criminal Law (§ 655) — Trial—Conduct of Presiding Judge.
    Where the cross-examination of a state’s witness proceeded on the theory that the district attorney and a justice of the peace had been guilty of improper conduct on an ex parte examination of witnesses, and the court permitted many questions without eliciting proof of any improper conduct, and informed accused’s counsel that, if there was improper conduct, he would be given the widest opportunity to show it, and many more questions were asked on cross-examination, the remark of the court made on objection to questions on cross-examination that, if counsel knew of any improper conduct, he could prove it, but he should not take the time of the court fishing around, was not erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1520-1523, 1527, 1535; Dec. Dig. § 655.]
    6. Criminal Law (§ 1166%) — Harmless Error-Impaneling Jury.
    Where the court, on being advised that a juror who had been selected and sworn had formed and expressed an opinion, ordered the other six jurors accepted and sworn into an adjoining room in charge of an officer, and the juror was examined, and thereafter the court stated he would sustain a peremptory challenge, but no challenge was interposed, accused could not complain because the juror sat in the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3123; Dec. Dig. § 1166%.]
    7. Homicide (§ 158) — Threats—Admissibility.
    Where there was evidence that accused armed himself with a pistol and went to the polls, and then directly to the place where he killed decedent immediately on seeing him, evidence that accused immediately before arming himself stated that he‘was going to vote a negro, and in about 20 minutes he was going to kill a person, was admissible to prove threats within the rule that the facts must individuate decedent as the person in regard to whom the threats were made.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.]
    8. Criminal Law (§ 1170) — Harmless Error-Erroneous Exclusion op Evidence.
    Where accused testified as to how the killing of decedent occurred, the error, of any, in excluding contradictory testimony, was not reversible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3145-3153; Dec. Dig. § 1170.]
    9. Homicide (§ 295) — Evidence — Instructions — Adequate Cause.
    Where accused testified that decedent, a larger and stronger man, attacked him, struck him, and grabbed him, and that during a struggle accused got out his gun and shot decedent, an instruction defining adequate cause as such as would commonly produce a degree of anger, resentment, or terror in a person of ordinary temper sufficient to render his mind > incapable of cool reflection, and that an assault and battery by decedent causing pain was adequate cause, and that to reduce a voluntary homicide to manslaughter, adequate cause must have existed, and the mind of accused must have been rendered incapable of cool reflection produced by adequate cause, etc., properly submitted the issue of adequate cause.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. § 295.]
    10. Criminal Law (§ 1137) — Instructions —Review.
    Accused may not complain of an instruction which is a virtual copy of a charge requested by him, for, if erroneous, the error is invited.
    [Ed. Note. — For other cases, see Criminal Law,^ Cent. Dig. §§ 3007-3010; Dec. Dig. §
    
    11. Criminal Law (§ 823) — Instructions— Misleading Instructions.
    Where the court charged on reasonable doubt generally and on reasonable doubt as between degrees of the offense, an instruction that the jury may not reach a verdict by lot or chance was not objectionable, though it would have been better to have used the phrase “if the jury found accused guilty” in beginning the charge.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1992-1995, 3158; Dee. Dig. § 823.]
    Appeal from District Court, Bell County; John D. Robinson, Judge.
    Monroe McKelvey was convicted of murder in the first degree, and he appeals.
    Affirmed.
    A. W. Gibson, of Rogers, and James F. Hair, of Belton, 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
    
    
      
      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of murder in the first degree, and his punishment assessed at life imprisonment in the penitentiary.

The state’s evidence would show: That appellant was running a restaurant at Temple, and had as one of his waiters Jett Haley, a woman whose virtue was questionable, to say the least. Prior to the time she went to work for appellant'as a waiter, she admits she was boarding and staying- with a woman who was known as a prostitute. That while staying with this woman she was frequently visited by appellant, and was also quite as often visited by deceased. Appellant subsequently employed her. in his restaurant, and she slept in the restaurant; appellant also sleeping in this building. On the day of the homicide she went from the restaurant to the home of the woman with whom she had formerly boarded. That in addition to Mrs. Gray and Jett Haley two other women were present, Minnie Nunnerly and Bessie Harris, both of whom were also of questionable virtue. During the evening deceased and some four or five other men went to this house, but at the time the homicide was committed all the men had left but deceased, who was sitting in a room with the four women. It is also shown that these people had a keg of beer, and perhaps some bottled beer, and they imbibed pretty freely. According to the women, appellant appeared at the back door of Mrs. Gray’s house, entered, having a drawn revolver in his hands, and asked Mrs. Gray, “Where is Jett?” and, upon being informed that she was in the other room, he went into this room, and seeing deceased shot and killed him. Jett Haley fled when she heard appellant ask Mrs. Gray where she was, and did not witness the shooting, but the other women say that deceased had begun to arise from his chair when the first shot was fired; that he had no weapon, and made no remark or demonstration, but appellant walked in and killed him without a word being spoken by either man. Appellant testifies, and says he went to the home of Mrs. Gray in search of Jett Haley; that he asked the question Mrs. Gray says he did, but denies having any weapon in his hand at the time; that deceased was a larger and stronger man than himself, and deceased at once attacked him. To use his language, he says: “Howard got up and struck me. Struck at my face, and I dodged the lick and he struck my arm, and he grabbed me. He was a larger man than I was, and was trying to get me down on the floor. I got my gun out, and he grabbed my gun, and we tussled around there a little while in the room, and the gun fired a couple of times in the room. I gave a big jerk, and when I jerked away from him I slipped and fell, and when he come at me again I shot him and turned round and ran out of the room.” He also says he had been 'informed prior to this time that deceased intended to kill him. This is a sufficient statement of the facts, as the other evidence will be discussed in passing on the questions raised.

Appellant moved to quash the indictment on the ground that it charged an impossible date; the contention being that, where the indictment alleges the offense to have been committed “on or about the 31st day of August, 1912,” the “2” is so written that it is not clearly discernible what was intended. This contention cannot be sustained. The figure “2” is plainly enough written for anyone to discern what figure was intended; in fact, is exactly like another “2” written in the indictment.

Appellant complains of the action of the court in overruling his application for a continuance. By one of the witnesses, Ered Wagner, he states he expects to prove that Sirs. Gray shortly after the killing hired him, Wagner, to have a beer keg taken away from her premises and hide the same. As all the witnesses testify to this keg of beer being on the premises at the time and prior to the shooting, this would not be material evidence. He further states that he expects to prove that the women after the shooting were intoxicated to the extent that they could not know and intelligently remember what took place. Appellant himself testified, as did every other eyewitness to the transaction, and none of them so state in their testimony. The record shows that the men who were with these women just prior to the shooting were in attendance on court and none of them introduced to prove that fact. So we are of the opinion the court was authorized to hold that, if the witness was present, he would not probably so testify, and, if he did, it was not probably true.

Appellant also complains that at the same term of court Cecil Tosh and Pete Hawthorne were indicted by the grand jury, not for complicity in this offense, but for separate and distinct offenses, and he alleges that these indictments were obtained by the district attorney to affect their credit as witnesses; that he desired to use these two men as witnesses, and’moved the court to continue- his case until they had been tried for the offenses with which they were charged ; that, if he would not continue the case, to hear evidence and determine whether or not the men were guilty of the offense with which they were charged. Had they been indicted for complicity in this homicide, either as a principal or accomplice, our statute provides that by making the proper application their trial should have first been had. But, as they were not charged with complicity, in the offense for which appellant was being tried, the indictments against them did not disqualify them as witnesses, and it was not necessary to postpone this case until they were tried or hear evidence to determine whether or not they were guilty of the offense charged against them.

While the witness Mrs. Cordie Gray was testifying she was permitted to state in answer to the question, “What did you say to the defendant just after the shooting?” that she asked him, “My God! what on earth made you do that? My God! this is awful,” and that appellant made no reply. Appellant does not deny in his testimony hearing this woman propound this interrogatory to him, nor that he vouchsafed any answer thereto. This was so closely connected with the shooting as to be almost if not a part of the transaction. The state was contending that appellant walked into the room and shot deceased without provocation, while appellant was contending that deceased assaulted him, licks were passed, and a scuffle was had before the shot was fired. This remark made at the time it was made threw light on the transaction, and would aid the jury in determining which theory was correct, and was properly admitted. Ryan v. State, 142 S. W. 881; La Grone v. State, 61 Tex. Cr. R. 170, 185 S. W. 122; Knight v. State, 144 S. W. 972, and cases cited on page 984; Wynne v. State, 59 Tex. Cr. R. 126, 127 S. W. 214; Kinney v. State, 144 S. W. 260; Keeton v. State, 59 Tex. Cr. R. 316, 128 S. W. 410.

While' the witness Minnie Nunnerly was testifying on cross-examination, appellant propounded a question, to which the state objected, and in sustaining the objection the court remarked: “If you know where the improper work is, you can prove it, but you cannot take the time of the court fishing around.” Exceptions were reserved to the remark of the court, and in approving the bill the court states: “Counsel for the defendant had proceeded in interrogating the witness Minnie Nunnerly in regard to, what they seemed to believe was improper conduct on the part of the district attorney and justice of the peace at Temple in their conduct of an ex parte examination of the witnesses, and investigation into the homicide after it occurred. The court had permitted many questions by counsel for defense, but no question had elicited any improper conduct so far as this witness knew. The court had stated to counsel for defense, if there was improper conduct on the part of the officers intimidating this witness or any other witness, that they would be granted the widest opportunity in uncovering'it. Many more questions were asked the witness in regard to the conduct of the officers, and the court believed that nothing improper had been shown from the testimony of the witness as having been committed by the district attorney or justice of the peace in the statements taken, and investigation made by them, and, when objection was made, the court stated to counsel that, if they knew of any improper work having been done by the district attorney and could prove it, they could do so, but that they should not take the time of the court fishing around to see what they could show by the witness.” Under such circumstances, the remark of the court presents no error, as it seems to have been elicited by the conduct of defendant’s counsel.. .

Another bill shows that after seven men had been selected and sworn as jurors to try this case during an intermission the district attorney was informed that one of them so selected, J. D. Allen, had formed and expressed an opinion. He called the court’s attention to the matter, when at the request of counsel for the state and defendant the other six jurors were sent into an adjoining room in charge of an officer, while the juror Allen was further examined. After hearing the evidence adduced, the court stated that he would sustain a peremptory challenge to the juror if the counsel for the state or defendant desired to challenge him, when the juror was again accepted by state’s and defendant’s counsel, and was a member of the jury that tried appellant. This bill presents no error. The court showed extreme fairness in the matter by telling counsel he would sustain a challenge for cause if either desired to make it; and, not having done so, no complaint can subsequently be made.

In another bill it is shown that Leon Wilson was in the restaurant of appellant a short time before the killing, and in a conversation with appellant, and appellant had said: “He was going to vote a negro, and in about 20 minutes he was going to kill a damned son of a bitch.” The testimony further shows that he immediately armed himself with the pistol that he used in slay-, ing deceased; that in a short time he did go to the polls; that a negro was at the polls with him, and that when he left the polls he went direct to the place of residence of Mrs. Gray, and by the state’s testimony that he walked into the" room where deceased was sitting with the pistol in his hands, and deliberately killed deceased. It is true, as contended by appellant, that to render threats admissible in a homicide case our decisions have stated that the facts and circumstances must individuate the deceased as the person in regard to whom the threats were made. In this case we think the evidence offered in behalf of the state would clearly show and authorize the jury to find that appellant referred to deceased when he made the. threat, 'and therefore the testimony was properly admitted. Godwin v. State, 38 Tex. Cr. R. 466, 43 S. W. 336.

While the witness Lucias Green was testifying, the defendant proved by the witness that after the shooting was over appellant came to him and got in his buggy, and he drove appellant to the city; that while on the way to the city appellant made a statement to him in regard to the difficulty, which would be what is termed a self-serving declaration. -If not res gestas, it would not be admissible, and the court sustained an objection to its admissibility. Appellant insists it was res gestae of the transaction. The time when the statement was made by appellant to Green elapsing between the shooting and the alleged statement is variously stated in the record, but it may be said that it was not so remote as to exclude the statement from being res gestee on account of lapse of time alone. The’ question is, Do the facts and circumstances connected therewith show that state of mind which would evidence that it was but the events speaking through appellant, or do the facts and circumstances show calmness- and deliberation on the part of appellant, and that he was but speaking about the event? We think the latter is true; but, if mistaken in this, the exclusion of this testimony could have not been hurtful to defendant. He himself testified, and told how the transaction occurred, and, if the witness Green had been permitted to testify to what he claimed appellant had told him, such statement would have contradicted appellant’s testimony on the trial, and under such circumstances in no event do we think the exclusion of this testimony would be reversible error.

The court in his charge submitted the issues of murder in the first and second degrees, manslaughter, and self-defense. In no part of the motion is complaint made of the charge of the court on murder in the first or second degree. There are several complaints that the court in his charge did not properly define “adequate cause” as applicable to the facts of this case. The court in this respect charged the jury: “By the expression ‘adequate cause’ is meant such as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection. The following are deemed adequate causes: An assault and battery by the deceased causing pain would be adequate cause, but you are further charged that all circumstances and conditions which are capable of creating and do create sudden passion in the mind of a person of ordinary temper sufficient to render the mind incapable of cool reflection would ■be adequate cause, and, in the event that several of such circumstances or conditions should be found by you to exist, they should be taken together by you in determining whether adequate cause existed. In order to reduce a voluntary homicide to the grade of manslaughter, it is necessary not only that adequate cause existed to reduce the state of mind referred to—that is, of anger, rage, sudden resentment or terror, sufficient to render it incapable of cool reflection—but also that such state of mind did actually exist at the time of the commission of the offense, and that it was produced by such adequate cause. Although the law provides that the provocation causing the sudden passion must arise at the time of the killing, it is your duty in determining the adequacy of the provocation (if any) to consider in connection therewith all the facts and circumstances in evidence in the case, and if you find that, by reason thereof, the defendant’s mind at the time of the killing was incapable of cool reflection, and that said facts and circumstances were sufficient to produce such state of mind in a person of ordinary temper, then the proof as to the sufficiency of the provocation satisfies the requirements of the law, and so in this ease you will consider all the facts and circumstances in evidence in determining the condition of the defendant’s mind at the time of the alleged killing, and the adequacy of the cause (if any) producing such condition.” This we think properly instructed the jury as to “adequate cause” under the evidence, and the complaints of these paragraphs of the court’s charge are without merit.

The court’s charge on self-defense was fair and peculiarly applicable to the facts in this case. The charge as given was a virtual copy of appellant’s charge No. 7 requested, and under such circumstances he would not be heard to complain, for, if error there be, the error was invited in requesting that this charge be given. Cornwell v. State, 61 Tex. Cr. R. 122, 134 S. W. 223.

The only other ground in the motion for new trial we deem it necessary to discuss is the one complaining of that portion of the charge which instructs the jury they cannot reach a verdict by lot or chance, etc. Appellant's contention is that the court should have instructed the jury, “If they found appellant guilty, they could not arrive at a Verdict by lot or chance,” etc., and by the omission of these words the charge as given was calculated to impress the jury with the belief that the court was of the opinion that appellant was guilty. It would have been, better if the court had used the words, “if the jury found appellant guilty,” in beginning this paragraph, but, when we read the charge as a whole, we do not think such a construction could have been placed by the jury on this paragraph. The court not only instructed the jury as to reasonable doubt generally, but also as to reasonable, doubt as between degrees of the offense, and the charge as a whole presents the case in a way that no part of it can be said to be on the weight to be given the testimony or any portion thereof, nor impress the jury that the court entertained any ' opinion in regard to his guilt or innocence.

The judgment is affirmed.  