
    DRAKE v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 22, 1913.
    Rehearing Denied Feb. 19, 1913.)
    1. CRIMINAL Law (§ 614) — Continuance-Absence oe Witnesses — Diligence.
    Where no effort had been made to take the depositions of nonresident witnesses, nor to procure the attendance of a resident witness who had testified on the first trial until two days before the trial, when his whereabouts •could have been easily ascertained three weeks before the trial, there was. no sufficient diligence to sustain a second application for a continuance for absence of such witnesses.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1312-1314; Dec. Dig. § 614.]
    2. Criminal Law (§ 412) — Evidence—Declarations oe Accused.
    Where the state claimed that defendant killed decedent, that he might marry decedent’s wife, evidence of what defendant said when he heard the court had refused decedent’s wife a divorce was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 928-935; Dec. Dig. § 412.]
    3. Homicide (§ 340) — Instructions—Prejudice.
    An instruction that, if at the time of the killing decedent was armed, the law would presume that he intended to kill or inflict some bodily injury on defendant, was in defendant’s favor, and therefore not prejudicial.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    Davidson, P. J., dissenting.
    Appeal from District Court, Taylor County; Thos. L. Blanton, Judge.
    Will Drake was convicted of second-degree murder, and lie appeals.
    Affirmed.
    Scott & Brelsford and D. G. Hunt, all of Eastland, for appellant. C. E. Lane, Asst. Atty. Gen., for.the State.
    
      
      For other eases see same topic ana section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Appellant was con-

victed of murder in the second degree, and his punishment fixed at five years in the penitentiary — the lowest penalty.

This is the second appeal in this case. The first is reported in 143 S. W. 1157, where a sufficient statement of the case will he found.

All of the questions as to the convening of the district court of Eastland county in special session and the order changing the venue from Eastland to Taylor county are fully discussed and passed on adversely to appellant in the companion case of Bill May-hew from Shackelford county, 155 S. W. 191, this day decided. We refer to that case for a discussion of those questions. The only other questions raised in this case that call for a discussion we now pass upon.

Appellant next contends that the court erred in overruling his application for a continuance or postponement of the case to procure the attendance of three absent witnesses, they being Chambless, Martin, and Prescott, or their depositions. This was a second application for a continuance. As qualified and explained by the court in allowing the bill, it is shown that on the first trial of the case in January, 1911, the defendant made an application for a continuance on account of the absence of said witness Prescott; that it was then shown that said witness had gone to Illinois to attend the funeral of his father, and was temporarily in Illinois for that purpose; that he was the railroad agent for the Texas Central Railroad at Carbon; that no effort had been made to procure the attendance of said Prescott after said first trial until two days before this trial, and, if he had used due diligence, he could easily have ascertained the whereabouts of said witness fully three weeks before the trial; that the witnesses Martin and Chambless were residents of the state of Arkansas, and that this was known to appellant’s attorneys; that there was no process known to the law to require said two witnesses in Arkansas to come to Texas from Arkansas against their will, and that, if they had desired to attend and get their fees, they could have done so under the former process which was served upon them prior to their removal from the state. Besides this, it was shown that the witness Martin had testified on the former trial of the case and his testimony on that trial was introduced and read in evidence on this trial; that shortly after the venue of this cause was changed on February 24th he wrote to said two Arkansas witnesses, and, in order that they might get their fees, asked them to come across from Arkansas into Texas at Texarkana where they could be subpoenaed, and thereby be enabled to get their fees. No effort whatever is shown to have been made to take the depositions of either of these Arkansas witnesses. We are of the opinion that the appellant is shown not to have used any diligence or proper diligence to procure the attendance of either of these witnesss, and the court did not commit a reversible error in refusing a continuance. Harvey v. State, 35 Tex. Cr. R. 559, 34 S. W. 623; Giles v. State, 148 S. W. 319, and cases there cited; Parshall v. State, 138 S. W. 776, 777; Hutchinson v. State, 6 Tex. App. 469.

By some other bills appellant claims that the court erred in admitting the testimony of Will Garter, brother of deceased, what he overheard appellant say at the courthouse at the time the divorce case of the deceased against his wife was tried, and what the witness Rutherford heard him say about deceased when he saw him at the bronc. show. This was correctly decided against appellant on the former appeal of this case.

The complaint of appellant to the charge of the court, in that it did not define malice, is not well taken. Neither does the criticism of the charge of the- court in a certain portion thereof that it so used the words “reasonable” and “reasonably” too often show any reversible error.

The charge of the court, “and if at the time, tbe deceased was armed, then the law would presume that be intended to bill or inflict some bodily injury upon defendant,” could not have affected appellant injuriously, even if improper. There was no direct testimony that deceased was armed at the time appellant shot and killed him, but appellant himself did testify that, at the time he shot deceased, deceased “threw his hand around, and made a pass in here for his gun, and when he did is when I jerked my gun and shot twice as quick as X could shoot.” The testimony of other witnesses also might be construed by implication to tend to show that deceased may have been armed at the time he was killed. It seems to us that this charge was in appellant’s favor, and not against him. At any rate, it shows no reversible error.

It is unnecessary to recite the testimony. It was amply sufficient to have justified the verdict. The judgment will be affirmed.

DAVIDSON, P. J.

I dissent in this case for the reasons set forth in the dissenting opinion in the Mayhew Case. The questions are the same in both cases.  