
    BOSLEY v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 12, 1913.)
    1. Criminal Law (§ 614) — Continuance— Grounds — Second Application.
    A second application by accused for a continuance because of the absence of a witness who had removed from the county was insufficient, where it did not show that a subpoena had been issued to the county to which the witness had moved, or some good reason for it not being issued.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1312-1314; Dec. Dig. § 614.]
    2. Criminal Law (§ 614i) — Continuance— Grounds — Second Application.
    A second application by accused for a continuance was insufficient, where it showed that the testimony was procurable from another source.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1312-1314; Dec. Dig. § 614.]
    3. Criminal Law (§ 595) — Continuance-Grounds — Materiality op Testimony.
    It was not grounds for a continuance in a murder case that an absent witness would testify that a third party, charged with the same offense, asked defendant’s wife not to turn against him, and stated to .her there was no case against him unless she did so, since only by inference could such testimony benefit defendant ; the language being as susceptible of the construction that the third party thought himself wrongfully accused as that he was guilty.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1323-1327; D'ec. Dig. § 595.]
    4. Criminal Law (§ 614) — Continuance— Grounds — Cumulative Evidence.
    A second application for a continuance in a criminal case will not be granted on account of the absence of mere cumulative testimony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1312-1314;' Dec. Dig. § 614.’]
    5. Criminal Law (§ 1166) — Harmless Error-Refusal of Continuance.
    The refusal of a continuance in a murder case because of the absence of a witness who would testify to the facts stated in her confession, wherein she charged a third person with firing the fatal shot, if error, was harmless, where the confession and the fact that it was made were admitted in evidence, and the evidence was convincing on defendant’s guilt, and very weak on the proposition that the shot was fired by the third party.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3100-3102, 3107-3113; Dec. Dig. § 1166.]
    6. Criminal Law (§ 614) — Continuance-Second Application.
    Where accused knew the location of a witness, and that she was beyond the court’s jurisdiction, his second application for a continuance should have shown that he made some efforts to take her deposition, or obtain her attendance on court
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1312-1314; Dec. Dig. § 614.]
    7. Criminal Law (§ 1170%) — Impeachment —Introduction of Evidence — Harmless Error.
    Where a witness testified to a certain statement. and on cross-examination was asked as to whether she had not made a contradictory statement to a person named, and she denied making it, and on redirect examination it was proven that she had testified to the same facts at another time as those then testified to by her, the supporting testimony was admissible in evidence, though introduced before the impeaching witness had been placed on the stand.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170%.]
    8. Witnesses (§ 395) — Impeachment—Corroboration.
    Where evidence is introduced to impeach a witness by proof of prior contradictory statements, evidence is competent to show that he previously made statements agreeing with his testimony on the trial.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 1260; Dec. Dig. § 395.]
    9. Criminal Law (§ 1171) — Harmless Error-Conduct of Counsel.
    A statement of the state’s counsel in objecting to certain evidence as hearsay, that, if defendant’s counsel desired to prove such fact, they should place defendant on the stand, was harmless.
    [Ed.- Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3126, 3127; Dec. Dig. § 1171.]
    10. Criminal Law (§ 784) — Instruction-Circumstantial Evidence.
    An instruction that, for circumstantial evidence to warrant a conviction, it should produce in the minds of the jury a reasonable and moral certainty that the accused committed the offense, was not objectionable for failure to use the words “and none other” after the word “accused,” especially when followed by a correct instruction on alibi.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.]
    11. Criminal Law (§ 824) — Instruction-Failure of Accused to Testify.
    Failure to instruct on the failure of accused to testify was not error, where no request was made for such instruction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1996-2004; Dec. Dig. § 824.]
    12. Criminal Law (§ 161) — Appeal and Error-Former Jeopardy.
    A contention that accused pending appeal had been again tried could not avail him on appeal from a conviction on the first trial; the plea of former jeopardy not applying in such case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 290-303; Dee. Dig. § 161.]
    Appeal from District Court, Shelby County; R. T. Brown, Special Judge.
    Herman Bosley was convicted of murder in the second degree, and he appeals.
    Affirmed.
    Allen & Flanary, Gibson & Callaway, and C. F. Greenwood, all of Dallas, and W. F. Ramsey, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted, charged with murder in the second degree, and, when tried, was convicted of that offense, and his punishment assessed at five years’ confinement in the state penitentiary.

Appellant filed an application for a continuance on account of the absence of Al-lee Earl, Mell Handy, and Idella Waterhouse. This was his second application, a continuance at the former term having been granted on his application. By the witness Allee Earl he states he can prove that some four or five days after appellant was arrested charged with this offense one Rufus Driver at night came to the home of appellant, and “asked the wife of appellant not to turn against him, Rufus Driver; that he was also charged with the offense (as well as appellant), and there would he no case against him (Driver) if she (appellant’s wife) did not turn against him, and promised to buy her a nice present.” As to this witness, the record discloses that she was summoned while a resident of Shelby county; that since being summoned she had moved to Nacogdoches county, and no additional process had been issued for her, consequently the diligence as to this witness would be insufficient on a second application. The witness was not required to attend, having moved out of the county, and the application, to be sufficient, must show that a subpoena had been issued to the county where the witness had moved, or some good reason stated why it had not been done. This has always been the rule in this court.

In addition to this, the application itself shows that the testimony was procurable from another source, and no reason stated why this witness was not used, and it has been the unvarying rule in this court that a second application is insufficient which fails to show that the testimony cannot be procured from any other source. McCulloch v. State, 35 Tex. Cr. R. 268, 33 S. W. 230; Pinckord v. State, 13 Tex. App. 468; Henderson v. State, 5 Tex. App. 134.

Then, again, it would only be by inference that the testimony desired from this witness could be of any benefit to defendant. This language would be as susceptible of the construction that Driver thought himself wrongfully accused by appellant and his mother, and he did not want his wife to join in the wrongful accusation as one injurious to Driver.

As to the witness Mell Handy, the record shows that another witness did appear and testify to the same facts it was expected to be proven by this witness, and in Harvey v. State, 35 Tex. Cr. R. 545, 34 S. W. 623, and other cases, it has been held that testimony which would only be cumulative of other testimony adduced on the trial would be no ground on which to base a second application for a continuance.

The only other witness named in the application is Idella Waterhouse, the mother of this appellant. The application and record would disclose that almost immediately following the homicide appellant and his mother, the absent Idella Waterhouse, were arrested charged with the murder; that while in jail she was carried before the county attorney, and denied any knowledge of the crime; that, after conferring with appellant, she went before the county attorney again, and then made a statement or confession in which she stated that she and one Rufus Driver, her son-in-law, had entered into a conspiracy to kill Byron Alexander; that, in pursuance of this conspiracy, she and Rufus Driver went near the home of Byron Alexander, and she went in, and, after getting in the house, complained of the heat, and raised a window, when the shots were fired from the outside that killed the child for which appellant was being prosecuted for killing. Driver was then arrested, but, when the grand jury met and investigated the case, Driver was not indicted, but indictments were returned against appellant and his mother, the absent witness. It appears at the former term of court the cases against appellant and his mother were both continued, and then his mother made a bond and went to Louisiana, where she remained until after the February term of court, when appellant was tried. It further appears that on March 9th the case against appellant’s mother was dismissed by the district attorney. Thereafter, on March 19th, when his case was called, he applied to continue on account of her absence, setting up that he expected to prove by her the facts she had stated in her confession to the county attorney, which evidence would go to show that Driver, and not appellant, was guilty of the offense. He gives as a reason for not summoning this witness when first indicted that she was also indicted for an offense growing out of the same transaction, and therefore was not a competent witness in his behalf until the case against her had been dismissed, but the application fails to show sufficient diligence used by him during the 10 days, elapsing from the date her case was dismissed until his case was called for trial. He does not show the efforts he made, if any, to get in communication with this witness, or learn her whereabouts. It appears that on the day his case was called for trial he then knew her exact whereabouts and stated she was at Coushatta, Red River parish, La. The application does not show the distance from Center to Coushatta, and to make the diligence sufficient it should have shown the distance, and that from the time the case against her was dismissed and he learned her exact location sufficient time did not remain for him to have taken her depositions.

The record disclosing that he knew the location of the witness and that she was beyond the jurisdiction of the court, he should also have shown that he had made some efforts to take her depositions, or to obtain her attendance on court. While, as stated, the application does not show the distance, yet, if we take our geographical knowledge into consideration, we know that Shelby county borders on the Louisiana line, and there is but one county or parish intervening between Shelby county and Red River parish. Harvey v. State, 35 Tex. Cr. R. 545, 34 S. W. 623; De Alberts v. State, 34 Tex. Cr. R. 508, 31 S. W. 391; Hennessy v. State, 23 Tex. App. 340, 5 S. W. 215; Swofford v. State, 3 Tex. App. 76. It may be said that tlie court permitted, without objection, the defendant to prove by the county attorney of Shelby county the facts stated by the witness at the time she made the confession, and, this confession being admitted, it was thus in evidence that this absent witness had sworn to all the facts the defendant stated he expected to prove by her. In addition to this, all the evidence stated it was expected to prove by this witness was proven as undisputed facts, except that Driver went with her to the house that night and fired the shots after she opened the window, and this fact, we think, the record would disclose the court was authorized to find was not probably true. The undisputed facts show that the cartridges used were 40-44 Winchester shells; they being picked up off the ground. The record further discloses that appellant was the owner of a 40-44 Winchester rifle, while it does not even suggest that Driver ever owned such a gun. If the state’s witnesses are to be believed, appellant was seen to leave his house at night prior to the shooting, and return home just about daylight, riding a horse; that a horse of a neighbor of appellant was taken from his lot and ridden that night, and found next morning on the road between the home of appellant and the man from whose lot it had been taken. The other facts and circumstances point to appellant as the person who fired the shots, while the main prosecuting witness was shown beyond dispute to have stated at the time the first shot was fired it was appellant who was doing the shooting. As to how he knew this fact at that time is not explained by the record. He does not say that later he heard appellant’s voice on the outside of the house, while the facts and circumstances indicating that perhaps it was Driver who did the shooting are very weak. In section 047 of White’s Ann. Code of Criminal Procedure will be found numerous authorities holding that the court on appeal will not revise or reverse the judgment of the lower court refusing a continuance and overruling the application for a new trial based there1on, unless it is made to appear by the evidence adduced on the trial that the proposed absent testimony was probably true. Wilkins v. State, 35 Tex. Cr. R. 525, 34 S. W. 627; Weaver v. State, 34 Tex. Cr. R. 282, 30 S. W. 220. Again, in Harvey v. State, 35 Tex. Cr. R. 545, 34 S. W. 623, this court held that the record showed that the defendant used the testimony of the witness on a former trial in application for a continuance. A motion for new trial was properly overruled. In this case the confession of the absent witness was introduced by defendant, in which all the testimony expected to be proven by her was admitted in evidence, and. in the light of these decisions and the record in this case we do not think the court erred in overruling the application for a continuance.

In another bill it is shown that Lena Hooper testified that just a short time before the homicide she saw appellant with a Winchester rifle, shooting at a dog. On cross-examination she was asked the evening after the homicide if she did not tell Edwin Booth that she did not remember how long it was prior to the homicide when she had seen appellant with this rifle, and she denied making this statement to Edwin Booth. On redirect examination, in support of her testimony, it was proven that she had testified to the same facts as she had testified to in this case. This was prior to the time that appellant had placed Edwin Booth on the stand, but he had laid the predicate to impeach her, and, while it was irregular to introduce the testimony at that time, yet, as appellant did place Booth on the stand and sought to impeach her by offering testimony of a contradictory nature, the supporting testimony became admissible in evidence, and the irregularity as to the time of its introduction presents no such error of which he can complain. Gibson v. State, 23 Tex. App. 422, 6 S. W. 314.

Where evidence is introduced to impeach a witness by proof of contradictory statements made to him by others, evidence is competent to show that he had previously made statements agreeing with and corroborating his testimony on the trial. Hamilton v. State, 36 Tex. Cr. R. 372, 37 S. W. 431: Kirk v. State, 35 Tex. Cr. R. 224, 82 S. W. 1945; English v. State, 34 Tex. Cr. R. 190, 30 S. W. 233; Branch’s Crim. Law, § 874.

While Edwin Booth was testifyiiig in behalf of defendant, the defendant attempted to prove by him a self-serving declaration made by defendant to this witness after his arrest. State’s counsel objected, and in stating his objection said it was hearsay and self-serving, and, if they wanted to prove that fact, let them place defendant on the stand. Defendant objected to the latter part of the remark of counsel for the state, which objection was sustained by the court. This was during the trial of the case, and at this time it could not have been known whether or not defendant would testify in the case, but appellant now contends that this incidental remark of the district attorney was a reference to defendant’s failure to testify, and for which cause this case should be reversed. Appellant was seeking to elicit from the witness what the defendant had said in his own behalf on a certain occasion, and if this objection made by counsel for the state should be held to be a reference to defendant’s failure to testify, incidentally made, this court has held in Combs v. State, 55 Tex. Cr. R. 338, 116 S. W. 586, “that any bare allusion by the prosecuting attorney to the failure of the defendant to testify would not operate a reversal of the case.” See, also, Cabrera v. State, 56, Tex. Cr. R. 155, 118 S. W. 1054, Johnson v. State, 53 Tex. Cr. R. 341, 109 S. W. 936, Smith v. State, 52 Tex. Cr. R. 351, 106 S. W. 1161, 15 Ann. Cas. 357, and 5 Am. & Eng. Ency. of Prac. p. 339, where a long list of authorities will be found from this and other states so holding.

This being a case of circumstantial evidence, the testimony of defendant tending to prove an alibi, the court instructed the jury: “In this case the state'relies for a conviction upon circumstantial evidence alone, and, in order to warrant a conviction upon such evidence, each fact necessary to establish the guilt of the accused must be proved by competent evidence, beyond a reasonable doubt, and the facts and circumstances proved should not only be consistent with the guilt of the accused, but inconsistent with any other reasonable hypothesis or conclusion than that of his guilt, and produce in your minds a reasonable and moral certainty that the accused committed the offense. You are instructed that, in addition to his plea of not guilty, the defendant in this case interposes what is known in legal phraseology as an alibi; that is, that, if deceased was killed as alleged, the defendant was, at the time of such killing, at another and different place than at which such killing was done, and therefore was not and could not have been the person who killed the deceased, if he was killed. Now, if the evidence raises in your minds a reasonable doubt as to the presence of the defendant at the place where the deceased was killed, if killed, at the time of such killing, then you should acquit the defendant.” This form of charge on circumstantial evidence was specifically approved by this court in Henderson v. State, 50 Tex. Cr. R. 268, 96 S. W. 37, and it has been frequently held by this court that no exact words need be used in charging on circumstantial evidence, but if the charge, by a proper construction of the language used, instructed the jury that the evidence must exclude every other reasonable hypothesis than that of the guilt of the defendant, it is sufficient. Branch’s Orim. Law, § 204. The charge on alibi is in accordance with the approved forms, and is here recited tha.titmay be construed in connection with the charge on circumstantial evidence to show that appellant could have possibly suffered no injury by reason-of the fact that the words “and none other” were not used in the charge on circumstantial evidence.

Appellant also in the motion for new trial complains the court failed in his charge to instruct the jury that the defendant was permitted to testify in his own behalf, but his failure to do so should not be considered as a circumstance against him, nor be alluded to or discussed by the jury. There is no contention made that the jury alluded to or considered in their retirement the failure of defendant to testify, and, under such circumstances, no possible injury could have resulted to defendant. It has always been held that the court is not required to charge as to defendant’s failure to testify, unless requested so to do. Morrison v. State, 40 Tex. Cr. R. 496, 51 S. W. 358; Prewett v. State, 41 Tex. Cr. R. 262, 53 S. W. 879.

The only other ground in the motion complains of the insufficiency of the testimony to sustain the verdict. If the state’s testimony is to be given any credence, it was a coldblooded attempt at assassination, being reduced to murder in the second degree only by reason of the fact that appellant failed to kill the person he intended to kill, and, while it is a case of circumstantial evidence, the evidence is of that cogency to authorize the jury to find that he was the person who committed the offense. ■

Some affidavits have been filed in this court that since the trial of this case appellant has again been tried, as contended by him, for the same offense. This court cannot consider such matters; they only looking to the record made on the trial of the case from which the appeal is prosecuted. But we might add, having been tried and convicted in this case first, the plea of former jeopardy would not apply. If good on the latter case, it could only be interposed and considered when it was sought to 'try him the second time.

The judgment is affirmed.  