
    WELLS v. STATE.
    (No. 7352.)
    (Court of Criminal Appeals of Texas.
    Jan. 24, 1923.
    Rehearing Denied March 14, 1923.)
    1. Criminal law (gtw589(I)—Refusal of two days’ delay where indictment not served till demanded held1 not error.
    Refusal to grant a delay of two days held not error, where it appeared accused being at large on bail had not been served with a copy of the indictment until it was demanded.
    2. Criminal law <®=>l 137(5), 1169(5)—Irrele-vant testimony held not so prejudicial as to be incurable by instruction, and, where defendant objected to instruction, he cannot complain.
    In a prosecution for murder, testimony that accused bad married a negro woman, if irrelevant, held not so harmful that it could not be cured by an instruction withdrawing it, and, where such instruction was objected to by accused, he was in no position to complain.
    Appeal from District Court, Fayette County; M. C. Jeffrey, Judge.
    J. W. Wells was convicted of murder, and he appeals.
    Affirmed.
    Norman G. Kittrell, Sr., and H. E. Kahn, both of Houston, George Willrich,, of La Grange, and H. A. Townsend, of Columbus, for appellant.
    R. G. Storey, Asst Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for murder ; punishment fixed at confinement in the penitentiary for a period of 10 years.

Allen Smith was shot and killed. There were two wounds; one bullet entering on the left side, going through the body, and coming out on the right side. If it entered the cavity, it i was but slightly. The other bullet entered the left side of the small of the back, ranging downward and going through the upper part of the kidney.

There were several eyewitnesses. The appellant, Allen Smith, and Leon Moore were gambling with cards. The game eontem-plated tie dealing of five cards, one of them with the face down, tie others exposed. Six cards were, dealt to each player. The .evidence is conflicting as to who dealt tie cards. A controversy arose touching the effect of this error.

Moore’s version is, in substance, this: When 'six cards had been dealt, Smith cont'ljided that neither could win tie bet, but tiat they would have to “split the bet.” Appellant sprang to his feet and said, “We will split it this way,” and shot. Moore reached for his money, and the appellant then shot him. After being shot, Smith laid down on the counter, and, after shooting Moore, the appellant shot Smith again. The evidence showed that Smith had an automatic pistol, though Moore testified that neither he nor Smith drew a pistol or made any demonstration to do so.

The testimony of the state witness Rogers was in substance like that of Moore. Other witnesses testified that both Rogers and Moore were present. The state’s witnesses were negroes.

The witness Poteet, a white man, was with the appellant. They came together to the place where the gambling occurred. Poteet was hired by the appellant to bring him in a ear. Poteet said that Smith dealt off too many cards. Wells (the appellant) claimed that he won the bet. Smith denied this and said he would take his money. Appellant then said that they would split the bet. Smith said: “Hell, no! You won’t split nothing with me,” and raised up to get his gun; that is, he reached back to his hip pocket, where the witness saw an automatic pistol. Smith got it out, and appellant'shot twice in immediate succession. Both shots were fired while Smith was standing. Moore, in the meantime, - was getting his gun. He shot at the appellant but did not hit him.

Appellant testified that he and Smith were betting. Smith was dealing and dealt himself six cards, and appellant said:' “You have six cards; I win the money.” To which Smith replied, “I will be damned' if you win the money,” and reached for his money. Appellant said that he knew he was hemmed in and must act promptly, so he reached for his pistol and fired twice. About the same time that he shot, Moore came around the corner with a pistol leveled at him and fired. The appellant returned the fire from a sitting position; then jumped up and raised the table and got out. He said that Smith had his gun in his hand and was pointing it at the appellant when the second shot was fired.

In bill No. 1 complaint is made of the failure of the court to serve the appellant with a copy of the indictment. The indictment was filed May 5, 1922. Appellant was at large on bail, and late in the afternoon of the 30th of May he filed a motion demanding a certified copy of the indictment. The motion was heard on the next morning, and a certified copy of the indictment was delivered to the appellant.

Appellant also sought a delay of two full days, which was denied. In refusing to delay the trial under the circumstances, the court appears to have been justified under the authorities. Venn v. State, 86 Tex. Cr. R. 633, 218 S. W. 1060; Revill v. State, 87 Tex. Cr. R. 1, 218 S. W. 1044.

In bill No. 3 complaint is made that the state proved by hearsay evidence that the appellant had married a negro woman. Appellant testified that he was a half-breed Indian; that he came from Oklahoma; that he had been married but was divorced; that he had married Elnora Oochran, a half-breed mulatto negro. This was not hearsay. In the court’s qualification to the bill of exceptions, it is shown that the court had prepared a paragraph of his charge withdrawing the testimony complained of from the consideration of the jury; that he exhibited the charge to the counsel for the appellant, who objected to having it read to the jury, and because of the objection the charge was not given. Granting that the testimony was not relevant, it is deemed not of such harmful character that it could not have been withdrawn by an instruction to the jury. The appellant having prevented the withdrawing of the testimony is not in an attitude to complain.

No error’s appearing in the record, the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

We have been unable to agree with appellant’s contention that the admission of the evidence complained of in his bill of exceptions No. 3 was so inherently prejudicial that the same could not have been withdrawn. Many more cases than those cited by appellant may be found where reversals have been ordered because of the admission of improper testimony; equally as many may be cited where it has been held the withdrawal from the consideration of the jury of the evidence erroneously admitted will cure the error. In this respect we must consider each case upon the facts presented. The trial judge in the instant case concluded he had made a mistake in admitting the evidence; he tendered a charge in which he proposed to instruct the jury to disregard it, and was met with an objection to any effort to correct what he thought had been an error on his part. We adhere to our original opinion that in our judgment, under the facts of this case, the evidence was not of such harmful character that it could not have been withdrawn; furthermore, we cannot approve appellant’s attitude in interposing an objection when the court offered to withdraw it, thereby preventing or at least discouraging an effort in his behalf, and yet strenuously insisting that the case ought to be reversed for an alleged error which he objected to the court attempting to correct.

The motion for rehearing is overruled. 
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