
    HUGHES v. STATE.
    (No. 4800.)
    (Court of Criminal Appeals of Texas.
    June 12, 1918.)
    1. Criminal Law <§=»917(2) — New Trial.
    Where there was a sharp issue of fact touching the immediate incidents of a homicide, it was error to deny a motion for new trial for refusal of continuance on account of the absence of a witness, whose absence was satisfactorily accounted for, and whose testimony, if believed, might have resulted in a verdict of acquittal.
    2. Constitutional Law <S=>61 — Courts 62 — Delegation of Power — Suspension of Laws.
    Acts 35th Leg. c. 93, § 19 (Vernon’s Ann. Civ. St. Supp. 1918, art. 30), providing that if the court in the Twentieth and Eighty-Fifth Judicial districts is in session by virtue of existing laws at the time the act becomes effective, the act will not be operative until after the term shall have expired or be terminated by order of the judge is not unconstitutional as delegating to the judge the power to suspend laws, contrary to Const, art. 1, § 28, which vests that power in the Legislature alone.
    8. Witnesses <©=36 — Convicts.
    Pen. Code 1911, § 1617, making the evidence of convicts competent in prosecutions against one who, while a convict guard, assaults a convict, is valid.
    4. Homicide <©=159 — Evidence — State oe Hind.
    In prosecution of a convict guard for killing-convict, evidence that shortly before the homicide the defendant whipped the deceased was admissible to show defendant’s state of mind touching the deceased.
    Appeal from District Court, Robertson County; H. S. Morebead, Judge.
    L. A. Hughes was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    J. C. Scott and Roy D. L. Killough, both of Eranltlin, and J. Eelton Lane, of Hearne, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant, under indictment for murder, was convicted of manslaughter.

He was an employé of the state penitentiary, guarding convicts, and shot and killed Gaston Pope, a convict. The controverted issue was under what circumstances the homicide took place. The state’s theory tended to show an unprovoked murder; that of appellant pointed to justification upon the ground of self-defense. To support its theory the state relied upon the testimony of several witnesses who were convicts. It appears that shortly after the homicide each of these state’s witnesses signed a written statement, giving their respective versions of the incidents of the occurrence. Each of these statements were favorable to appellant’s theory, stating, in substance, that at the time he was shot deceased was approaching appellant with a hoe in his hands; that his words and attitude ■ were threatening; that appellant called upon him more than once to stop before he fired the fatal shot, which took effect in the breast of deceased. We quote from the written statement of one of these witnesses as follows:

“The first I saw or heard was I heard Pope say, ‘By God, Boss, you got me to kill,’ and then he turned around and started toward Boss Hughes with his hoe and Boss Hughes told him if he come at him with that hoe he would kill him, and Pope went on pretty close to him.”

On the trial of the case each of these witnesses gave damaging testimony against the appellant in conflict with the witnesses’ written statements, claiming, in substance, that the written statements were not true, but were made under the influence of various officers of the penitentiary system, and were unduly favorable to appellant becauSe of fear upon the part of the witnesses to make them otherwise. This was controverted by the several witnesses who were present at the time the statements were taken, including a justice of the peace, who testified, in substance, that he read over the written statements to the witnesses; that they were not threatened; that the only person present with him was a man who was not connected with the penitentiary system; that the men severally acknowledged in his presence the truth of the statements, and. stated they would swear thereto; that it was possible that part of the time one of the defendant’s witnesses, who was an employé of the prison system, was present.

Appellant made a first application for a continuance, alleging, among other things, that A. E. Schacke, an eyewitness for whose attendance diligence had been used, was sick and unable to attend the trial. It appears that this witness was a convict, and that he, with the other convict witnesses, had made a written statement which was attached to the motion for a continuance, and contained the following:

“I was in Boss Lee Hughes squad when he killed Gaston Pope. The first I saw was when Pope passed me, going toward Boss Hughes with a hoe in his hand, and said, ‘God damn you, you have got to kill me.’ Boss Hughes said, ‘Don’t come too close to me with that hoe.’ The next I heard was the gun fired.”

Appellant testified, in substance, that deceased, when 25 or 30 steps ahead of him, turned around and came back, at him with his hoe on his shoulder, saying he was going to “make me kill him, when I told him to throw his hoe down and stop. Deceased was taking long steps tolerable fast; he had his hoe over his shoulder (illustrating); that deceased said, ‘God damn you, I am going to make you kill me.’ ” Deceased was told by appellant several times to stop, but continued advancing. The. hoe was exhibited in evidence. Appellant said, “I knew he would kill me with the hoe if I did not stop him.” He said deceased continued advancing until he was shot. Patrick, the assistant manager of the farms, who was in charge of the squads of convicts, one of which was under appellant’s immediate direction, testified, corroborating the -statement of appellant as to the manner in which the homicide took place. Patrick said:

“Pope was somewhere up about the head of the squad, and he just drawed his hoe' back and started at the defendant, cursing- him. Pope said, ‘God damn you; you have got to kill me or I am going to get you.’ Mr. Hughes told Mm to stop. He told him to stop two or three times. Mr. Hughes had his gloves on his hands at the time, and laid his gun down between him and his saddle and pulled off one of his gloves, and told deceased to lay down his hoe or he would kill him. Deceased continued to advance until he was about 12 feet from appellant, when the shot was fired.”

Witness said the hoe, in his judgment, was a deadly weapon, and that Pope could have killed appellant with it.

On the hearing of the application for a new trial there was before the court an affidavit of the witness A. E. Sckacke, which, we copy as follows:

“I appeared as a witness before Justice. W. O. Lovelace, the justice of the peace at the inquest proceedings on the body' of Gaston Pope. The statement that X made and swore to -before the justice of the peace was true. I was present at the time that Gaston Pope was killed by L. A. Hughes. At the time he was killed deceased was walking up on Mr. Hughes with a hoe in his hands, and said to Mr. Hughes: ‘Damn you, you have got to kill me.’ He was carrying it in his hand with the hoe part up. He was walking a little faster than an ordinary walk. Mr. Hughes, while the deceased was walking up on him, said, ‘Stay on back, keep your distance away from me, don’t come up on me; don’t come up close to me at all.’ Pie walked right up on Mr. Hughes, who was sitting on the horse, and next thing I heard was the gun fire. I never at any time saw Mr. Hughes whip the deceased. I was before the grand jury, and was subpoenaed as a witness, but was too sick to attend the trial of the case, which began July 23, 1917. I was sick in bed, and unable to come to court. I was brought up here to-day.”

We are of opinion that, in view of the record disclosing, as it does, a sharp issue of fact touching the immediate incidents of the homicide, the trial court was in error in failing to grant the motion for a new trial. The appellant was entitled to have the jury determine the controverted issue, and it cannot be said that the testimony of the absent witness would not have had weight with the jury. His testimony, if true, supported the •theory of appellant, and, if believed, might have resulted in a verdict of acquittal. Appellant had used diligence to procure the attendance of the witness. His absence was accounted for in a satisfactory manner, and it is appellant’s right to have the jury determine whether the testimony of this witness was true or false. Among the eases in point are Roquemore v. State, 54 Tex. Cr. R. 593, 114 S. W. 140, and Woods v. State, 203 S. W. 55.

The contention of appellant that the district' court of Robertson county was not in session at the time the indictment was filed cannot be sustained. The contention of appellant is not made right clear. As we understand it, however, it asserts the proposition that chapter 96, p. 256, Acts 35th Leg. (Vernon’s Ann. Oiv. St. Supp. 1918, art. 30), reorganizing the Twentieth and creating the Eighty-Fifth judicial districts, operated to terminate the session of court at which the bill was returned before the date the indictment was returned, and that section 19 of the act, providing that, if court is in session by virtue of existing laws at the time that this act becomes effective, this act shall not be operative as .to said court so in session ■until after the term shall have expired or shall be terminated by order of the judge, is an unconstitutional provision, delegating, to the judge the power to suspend laws contrary to article 1, § 28, of the Constitution, which vests that power in the Legislature alone. This view, we think, is unsound. If there is any suspension of ,⅛§ law in this instance, it is by the Legislature and not by the judge.

Appellant has presented no convincing reason supporting his claim of the invalidity of article 1617, P. C., which makes competent the evidence of convicts in prosecutions against one who, while a convict guard, assaults a convict, and we think his view that the evidence that shortly before the homicide he whipped the deceased was inadmissible should not be sustained. It tended to show appellant’s state of mind touching the deceased.

The other assignments, presenting no reversible error, will not be discussed in detail.

For the error pointed out the judgment of the lower court is reversed, and the cause remanded. 
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