
    OTT v. STATE.
    (No. 6448.)
    (Court of Criminal Appeals of Texas.
    Dec. 7, 1921.)
    (. Criminal law &wkey;>( 166(9) — No injury for refusing continuance.
    In a prosecution for murder, conviction being for manslaughter with the lowest punishment, no injury resulted from the refusal of an application for continuance for witnesses, where testimony would have been cumulative, hearsay, and only on the issue of manslaughter.
    2. Criminal law &wkey;>982 — Homicide <&wkey;163(l) —Evidence of accused’s immoral life after death of husband to combat her statement of distaste for life of prostitution forced on her by her husband.
    In a prosecution of a wife for killing her husband, where accused was making it appear, that her acts of prostitution during her husband’s lifetime were distasteful to her and had been forced on her by her husband, the state could show that, since released from his influence, she continued to live a life of prostitution, and such evidence was admissible on her application for suspended sentence.
    3. Homicide <&wkey;!01, 339 — Exclusion of evidence of accused’s knowledge that her husband was living with another woman held harmless, and such conduct no excuse.
    When a wife was convicted of manslaughter and given the lowest punishment for killing her husband, and the theory of the prosecution was that deceased had been trying to get away from accused on account of her immoral conduct, exclusion of evidence as to accused’s knowledge that her husband was living with another woman was not harmful, and such conduct would not furnish legal justification for the killing.
    4. Criminal law <&wkey;829 (5) — Refusal of accused’s instruction on right to see husband notwithstanding injunction cured by main charge.
    In a prosecution of a wife for killing her husband, where the state put in evidence that deceased had filed suit for divorce and obtained an injunction restraining accused from interfering with deceased, which citation and writ ■ was put in evidence on the theory that accused killed deceased because he was trying to divorce her, any error in refusing accused’s instruction relating to her right to seek the accused for an explanation of his conduct was cured by the main charge, limiting the purpose of such injunction to determine the motive that accused had and the condition of her mind at the time she killed her husband; such general charge not limiting her right of self-defense.
    Appeal from Criminal District Cout, Dallas County; C. A. Pippen, Judge.
    Ida Ott was convicted of manslaughter, and she appeals.
    Affirmed.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for manslaughter, with two years in penitentiary as punishment.

This case has been before us for review upon a former appeal. The opinion will be found reported in 87 Tex. Cr. R. 382, 222 S. W. 261, in which the facts are fully set out, and will not be repeated here unless found necessary in discussing some bill of exceptions.

Continuance was sought by appellant for the witnesses E. Deering, Nona Daniels, and Jack Cresden. This is the fourth application for continuance. It is questionable if proper diligence is shown, but we dispose of it on other grounds. Deering’s testimony is cumulative. The witness Culp testified to the same facts expected to be proved by Deer-ing. Cresden’s testimony would have been hearsay and inadmissible. Nona Daniels’ evidence could have gone only to the issue of manslaughter if appellant had known of the facts which the witness was expected to relate. Conviction only being for manslaughter, and with the lowest punishment, we are unable to discover any injury.

While appellant was testifying she was asked by counsel for the state if she had not filled dates at Mrs. White’s rooming house in Shreveport. She answered “No,” but objection is urged to the question. She was also asked it it was not a fact that she had lived in Shreveport with a .man named Durette, not being married to him, to which she answered “Yes.” Appellant was making it appear to the jury that her immoral conduct in acts of prostitution during her husband’s lifetime was distasteful to her, but had been forced upon her by her husband, and from which she claimed he had profited pecuniarily. The state had a right to show, if it could, that after she had killed him, and been released from his influence, she was continuing a life of prostitution, and thus combat the position she had assumed before the jury. Appellant had forfeited her bond, and had sought to explain that she was not in Louisiana trying to avoid trial, but was ill. Her association with Lurette was admissible on this issue. An application for suspended sentence having been filed, the jury was entitled to know whether she was still living an immoral life to determine whether such application should be favorably considered.

It was the theory of the state that deceased had been trying to get away from appellant on account of her immoral conduct; that of appellant, that her conduct was caused and procured by deceased against her wishes. She was asked upon cross-examination if sbe did “not know since her husband’s return from France he had wanted to get rid of her and lead a clean Christian life,” to which she answered, “No.” Upon redirect examination her counsel asked her if she knew whether or not her husband at the time of his death was living with Nona Daniels. The court sustained objection, and complaint is made of this ruling. If deceased had been living with Nona Daniels, while reprehensible, it would have furnished no legal justification for the killing. If this was a fact, and appellant knew it, it could only have affected the state of her mind, to be considered upon the issue of manslaughter. In view of the verdict and punishment, we do not consider the exclusion of such evidence harmful, even if erroneous.

The requested charges upon appellant’s right to arm herself were properly refused'. No restrictions were put upon her right of self-defense by the court’s charge. This specific question was passed upon in the former opinion.

A short time before the killing deceased had filed suit for divorce against appellant, in connection with which he obtained an injunction restraining her from interfering with deceased in any manner, and from visiting him at his place of business and residence, and from attempting to have any relations with him whatever. The state put in evidence the citation and writ of injunction, on the theory that appellant killed deceased because he was trying to divorce her. The following special charge was requested:

“You are told as a part of the law of this case that, regardless of any injunction that may have been issued by any court and served on the defendant, if any, so far as defendant’s rights in this case are concerned, she had the legal right to seek the deceased or go to his place of business for the purpose of securing an explanation of the trouble between them, or for the purpose of bringing about a reconciliation between deceased and herself.”

Complaint is made because of the refusal to give this instruction. An examination of the general charge reveals that the court had instructed the jury with reference to the citation and writ in the following language:

“Now, I instruct you that if you consider said citation and writ of injunction for any purpose at all, you can only ^consider them for the purpose of enabling you, if it 'does, to determine the motive, if any, that the defendant had in her mind at the time she shot and killed the deceased, if she did, and the condition of her mind at the time of the killing, and for no other purpose.”

If the court had not included in his main charge the foregoing limitation on the purpose of such evidence, then the refusal of the requested charge would have presented a much more serious question. But the contention is made that the charge given does not cover the issue presented by the requested one. In words so plain there was no probability of misunderstanding, the jury were told, in effect:’ You may consider this evidence for one purpose and only one. We would not be warranted in concluding that the jury either misunderstood or disregarded the instruction. It occurs to us the matter presents a situation like where accused was given the unrestricted right of self-defense there is no necessity to charge that arming would not deprive him of that right. Here the court, in substance, has told the jury, if the killing occurred in a certain way, appellant would not be guilty, no restriction or limitation because of tbe injunction being injected ; tbe effect being to say, if sbe killed in self-defense, acquit ber, injunction or no injunction. In view of tbe entire record and tbe charges given we bave been unable to reach the conclusion that the refusal of tbe special charge was reversible error.

Tbe judgment of tbe trial court is affirmed. 
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