
    HALL v. STATE.
    (No. 4031.)
    (Court of Criminal Appeals of Texas.
    April 5, 1916.
    Rehearing Denied May 3, 1916.)
    1. Criminal Law <&wkey;59o(l) — 'Trial—Continuance.
    In a homicide case, the action of the trial court in refusing a continuance on the ground of the absence of defendant’s witness who would testify that deceased was in his restaurant drinking and had insulted his wife shortly before the crime, was not error, since witnesses on both sides testified that the deceased had been drinking, and the fact that he had insulted witness’ wife at another time and place, could not have thrown new light on the transaction.
    [Ed. Note.' — For other cases, see Criminal Law, Cent. Dig. § 1328; Dec. Dig. <&wkey;>595(l).]
    2. Criminal Law <&wkey;596(l) — Trial—Continuance.
    In a homicide case, the fact that all other eyewitnesses to the crime had appeared and testified, and that the testimony of a desired absent witness for defendant could or would be but cumulative, would be no ground to overrule a first application for continuance to secure his attendance.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1328; Dec. Dig. &wkey;596(l).]
    3. Criminal Law <&wkey;594(3) — Trial—Motion for Continuance.
    The refusal of a continuance to enable the defendant to secure the attendance of an eyewitness, who was a traveling vaudeville actor and whom the defendant and his counsel had been unable to locate from November 13th to December 9th, there being no substantial hope held out to the trial court that by the postponement of the case the witness could be located and his attendance secured, was not error.
    [Ed. Note. — For other- cases, see Criminal Law, Cent. Dig. § 1332; Dec. Dig. &wkey;594(3).]
    4. Affidavits <&wkey;5 — Affidavit Taken by Counsel — Validity.
    A motion for continuance may not be sworn to before one of the defendant’s attorneys, and if objected to on this ground, will be stricken from the record.
    [Ed. Note. — For other cases, see Affidavits, Cent. Dig. §§ 18-27; Dec. Dig. &wkey;5.]
    5. Homicide &wkey;>295(l) — Trial—Instructions -Self-Defense.
    Where the court fully presented self-defense and gave the defendant’s special charge on that issue, an instruction that insulting words or gestures or an assault and battery so slight as to show no intention to inflict pain or injury are not adequate cause to reduce an unlawful killing from the degree of murder to manslaughter, being in the words of Code Cr. Proe. 1911, art. 1131, was proper.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 606, 607; Dec. Dig. &wkey;295(l).]
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Will Hall was convicted of murder, and he appeals.
    Affirmed.
    Forrester & Stanford, of Waco, for appellant. C. C.’ McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder and his punishment assessed at 20 years’ confinement in the state penitentiary.

Appellant’s first contention is that the court erred in overruling his application for a continuance on account of the absence of George Senter and Frank Rucker. As to George Senter, the testimony alleged he would testify to would not have been admissible had he been in attendance on the court. It is not alleged that this witness knew anything about the facts of this case, or any matter leading up to the difficulty, it being alleged only that shortly before deceased was killed in the clubroom, deceased, at another and different place, had been in the restaurant of George Senter, drinking, and had insulted Senter’s wife. It was shown by all the witnesses who testified in the ease, both for the state and defendant, that deceased was drinking that night, and if it had been shown that he had insulted Senter’s wife at a different time and place, it could and would have thrown no light on this transaction.

As to the witness Frank Rucker, the testimony would place him at the scene of the killing, and if diligence was used to secure his attendance perhaps the application should have been granted. The fact that all other eyewitnesses to the transaction appeared and testified for the state and defendant, and his testimony could or would be but cumulative of the testimony of some of these witnesses, would be no ground to overrule the application, it being the first application for a continuance. The killing took place on the 9th of October; the grand jury returned a bill of indictment on October 23d, and appellant on October 27th, had a subpoena issued to McLennan county for this witness. It was returned on November 13th, showing that the witness had left Waco, and the sheriff had been unable to locate him. The c-ase was not called for trial until December 9th. No other or different process was obtained for the witness until the ease was called for trial on December 9th. While in the application for a continuance no reason is stated why no additional process had been asked for after November 13th until the day of the trial, yet attached to the motion for a new trial is the affidavit of appellant’s counsel stating that the reason they got out no additional process was that after diligent inquiry they had been unable to learn the whereabouts of the witness; that all they could learn was that he was a member of a vaudeville company and had left Waco with the company, going to East Texas. It is thus apparent that Rucker is a transient person, going from place to place, and if appellant and his counsel had been unable to locate the witness from November 13th to December 9th, what assurance is there they would be able to locate him by the next term of the court? Appellant’s counsel made the affidavit to the motion for new trial on D cesmber 23d, and they were still unable to locate the witness Ruck-er, and if after 5 or 6 weeks it was impossible to locate the witness, the trial court in acting on the motion must have felt justified in concluding that the prospect of ever locating the witness was but meager, and with no assurance he had been or could be located within any reasonable time, no good or useful purpose would be accomplished by granting a new trial and postponement of the case. If there had been any assurance given that the witness had been or could be located, doubtless the trial court and this court might take a different view of the matter. As said by this court in Smith v. State, 148 S. W. 723:

“While it is always to be regretted that a person on trial for his life or liberty is deprived of the attendance of a witness desired, yet, if from the evidence there does not seem to be a probability that the witness can be secured by a postponement, no good or useful purpose would be subserved in postponing the case, and the state cannot be deprived of the right to try a man because it is impossible to secure the attendance of a witness desired.”

If from November 13th to December 23d, by diligent inquiry, no one could be found who could give information .of the whereabouts of the witness, there could be but little reason assigned to give further time to see if some one could not be found who could locate the witness — a traveling vaudeville actor. As held by this court in Roquemore v. State, 59 Tex. Cr. R. 568, 129 S. W. 1120:

“In the light of this record, we do not think there is probable reason to believe the attendance of the witness could be secured at another trial of this case.”

So we might say in this case. No assurance is held out that the attendance of Ruck-er can be secured — he has disappeared, leaving behind no clue to locate him if, as contended by appellant, they have been diligent in their inquiry covering some 6 weeks’ time. See, also, Sinclair v. State, 34 Tex. Cr. R. 453, 30 S. W. 1070.

The state also calls our attention to the fact that the motion was sworn to before one of the attorneys of appellant. This is not proper practice, and had the state in the trial court made a motion to strike it from the record on this ground, it should have been sustained, unless appellant had amended it by swearing to it before some officer not representing him in the trial. MCr. R. 169, 131 S. W. 567. However, as the trial court considered the motion, we have passed on it on its merits, and as there was no substantial hope held out to the trial court that by a postponement of the case the witness could be located and his attendance secured, we cannot say the court abused the discretion confided to him by the law’ of this state.

The court fully defined manslaughter as applicable to the facts of this case, in a manner not complained of, but also instructed the jury:

“Insulting words or gestures, or an assault and battery so slight as to show no intention to inflict pain or injury, are not adequate cause to reduce an unlawful killing from the degree of murder to manslaughter.”

Appellant complains of this paragraph of the charge. This paragraph is but a copy of article 1131 of the statute and peculiarly applicable to the testimony in this case. The state’s testimony is, that appellant was standing in the door of the clubroom, and deceased, in passing, brushed up against him and perhaps stepped on his foot, at once asking to be excused. Of course, the testimony of defendant would have deceased cursing him, striking him and making a “hip-pocket play.” The court fully presented self-defense, and gave appellant’s special charge on that issue.

Another' exception to the charge was to that portion of the charge limiting the testimony of A. P. Burkhead. As the court gave appellant’s requested charge on this issue, this eliminated this exception.'

The court gave all the charges requested by appellant, submitted murder, manslaughter, aggravated assault, and self-defense in a manner applicable to the evidence in this case. No exception was reserved to the introduction of any testimony. So the only question in fact presented by the record is the one contending that the case should have been continued on account of the absence of Rucker, and this we have passed on above.

The judgment is affirmed. 
      (grroPor other cases see same to'pic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     