
    HUGHES v. STATE.
    (No. 7597.)
    (Court of Criminal Appeals of Texas.
    March 14, 1923.
    Rehearing Denied June 27, 1923.)
    1. Criminal law <§=>586, 1151 — Refusal to grant continuance not reviewed except for abuse of discretion.
    The truth of averments in an application for a continuance are addressed to the sound discretion of the court (Code Cr. Froc. 1911, art. 608, subd. 6), whose refusal to grant it will not be reviewed unless he abuses his discretion.
    2. Criminal law <§=>597(3) — Denial of continuance to procure testimony of absent witness held not abuse of discretion.
    Where one convicted of murder did not testify, while on the stand, that an absent witness or any other had communicated to him any threats by deceased to take his life, but introduced several witnesses, who testified as to such threats and communication, and several state’s witnesses testified positively that deceased was holding his hands in a'position indicating defenselessness when shot by defendant, who claimed that he acted, not on apparent danger, but on deceased using a deadly weapon, the court did not abuse his discretion in refusing a continuance to procure the testimony of such witness on the ground that his testimony would not probably have brought about a different result.
    3. Homicide <@=>262— Exhibition of deceased’s overcoat with hole in side held not available error, in absence of showing that it didi not illustrate controverted! issue.
    Exhibition of an overcoat identified as deceased’s by a witness, who also pointed out a hole therein on the side corresponding with deceased’s wound, ¡held not available error, in the absence of a showing that it did not illustrate some controverted issue.
    On Motion for Rehearing.
    4. Criminal law <@=>597(3) — Refusal of continuance for absence of witnesses as to undisputed matters not error.
    It is not error to refuse a continuance for absence of witnesses to testify ag to undisputed matters.
    5. Criminal law <@=>917(2) — Whether cumulative testimony would! produce different result largely in discretion of trial judge on motion for new trial for refusal to grant continuance to prooure it.
    While the question of cumulative testimony will not generally be considered in passing on refusal of a first application for a continuance to procure it, whether it would he likely to produce a different result is largely in the discretion of the, trial judge, in passing on a motion for new trial because of such refusal, where the fact to which it would go was shown without dispute by defendant’s^ testimony.
    6. Criminal law <@=>917(2) — Refusal to grant new trial because of denial of continuance to procure testimony of absent witness as to deceased’s threats and communication thereof to defendant held not abuse of discretion.
    Where accused’s testimony showed without controversy that threats were made by deceased and communicated to accused, the court did not abuse his discretion In refusing to grant a new trial after conviction because of the denial of a continuance to procure the testimony of an absent witness as to such threats and communication.
    7. Criminal law <@=>603(11) — Showing of diligence to procure testimony of absent witness held insufficient.
    Allegations that process was duly issued for and served on an absent witness and returns made thereon, and that he was reported by his physician to be ill and unable to attend court, held an insufficient showing of diligence to require a continuance to procure his testimony.
    8. Homicide <@=>336 — Showing witness deceased’s overcoat and asking him as to bullet hole therein held noit reversible error.
    Showing a witness deceased’s overcoat and asking him as to a bullet hole therein held not reversible error, in the absence of a showing that there was any blood on the coat.
    9. Criminal law <@=>l 170'/2(3) — Questions to which objections were sustained held not reversible error.
    , Questions asked a witness as to a bullet hole in deceased’s overcoat held not prejudicial error, where defendant’s objections thereto were sustained.
    10. Criminal law <@=>1064(1) — Matters which should be presented on motion for new trial not considered on motion for rehearing.
    Matters which should have been presented on motion for new trial cannot be considered on motion for rehearing.
    Appeal from District Court, Young County; P. A. Martin, Judge. <
    Fred Hughes was convicted of murder, and he appeals.
    Affirmed.
    Thos. G. Binkley, of Graham, H. P. Shead, of Port Worth, and Jno. R. Moore, of Graham, 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 25 years.

Appellant shot and killed A. Enloe, Jr. The state’s evidence is sufficient to support the verdict of murder. Appellant testified to a ease of self-defense. According to his statement, he was invited by deceased into a building used as a dance hall, but, as we understand it, not occupied at the time; the deceased was urging the appellant^ who claimed to be an officer, to refrain from interfering with the deceased pursuing the occupation of illicit whisky seller. Prom appellant’s testimony we take the following quotation:

“ * * * Mr. Enloe, the older gentleman, * * * walked up to me on the sidewalk and says, T wánt to talk to you, and, by God, I mean business!’ * * * I says, ‘Abe, let’s talk out here on the sidewalk,’ and he says: ‘No, we will go in the dance hall. There is no one in there.’ * * * He says, ‘I am going to sell that whisky,’ and I says: T can’t help that; if I catch you, I will take you to Graham.’ He says, ‘I have got some money,’ and started to give it to me. I says, ‘Don’t do that, don’t bring this proposition to me again.’ He says, T will get it by you, you s — n of a b-h, or I will kill you,’ and I says, ‘Let your conscience be your guide,’ and started to walk backwards, and when I got to the partition he moved his head and then disappeared, and the next I saw of him was the bulk of his shoulders and the gun leveled at me, and he fired, and I jerked my gun and fired twice and seen his gun fall, and then I turned my head and saw young Enloe running toward me, and his right hand was stretched out and his pistol smoking, and I fired one shot, and his gun dropped and he fell, and I started to go to the front, and when I got to the partition Mr. Enloe (the older man) was lying there.”

An application for a continuance was filed on account of tlie absence of a number of witnesses by wbom the appellant expected to prove communicated threats made by deceased against tbe appellant. The bill of exceptions complaining of the action' of the court in overruling the motion relates to the absence of the Witness Gehrge Flourney alone. The record is silent touching whether the other witnesses appeared. The hill states that the diligence consisted in having “process duly issued which was served upon the said witness and returns made thereon” ; that said witness was reported by his physician ■ to be sick and unable to attend court. It is charged in the application that the witness resided in Jones county. The pleader contents himself with the statement:

“That the said witness George Flourney resides in Jones county, Tex., and that his defendant has used due and sufficient diligence to procure the attendance of said witness in his behalf; that said witness was served with process herein, and his physician reports that he is ill and unable to be in attendance at this time.”

No dates are given touching the date of the issuance of the subpoena nor its return; neither the subpoena nor the return was attached to the motion. The truth of the averments in the applcation for a continuance are addressed to the sound discretion of the court. This is an express statutory provision. See article 608, subd. 6, Code of Crim. Proc. If, looking to the evidence upon the trial, it appeared to the trial court that the evidence was material and probably true, he would not have the discretion to overrule the motion.- It is only when the trial court- abuses this discretion in refusing a continuance or to grant a new trial that this court will review the action of the trial court denying a continuance. Peace v. State, 27 Tex. Cr. App. 83, 10 S. W. 761; Covey v. State, 23 Tex. App. 388, 5 S. W. 283; Vernon’s Tex. Crim. Stat. vol. 2, p. 321, note 34; Bocknight v. State, 87 Tex. Cr. R. 428, 222 S. W. 259; Russell v. State, 88 Tex. Cr. R. 582, 228 S. W. 948; Hoover v. State, 89 Tex. Cr. R. 378, 230 S. W. 982.

In the instant case, the appellant was a witness but did not testify that George Flourney had communicated to him any threats; nor did he testify that any other witness had done so. He introduced, however, a number of witnesses who testified that the deceased- had made threats to take the life of the appellant and that these threats were communicated to him before the homicide.

After the shooting, appellant claimed that the deceased was armed and directed attention to a pistol on the floor. There is an issue of fact, however, upon the subject, and some of the state’s witnesses were definite in their statements that at the time that the fatal, shots were fired the deceased was making no demonstration, and both he and his father were holding their hands in a position indicating their defenselessness. Appellant did not claim to have acted upon apparent danger, but that he acted upon the deceased using a deadly weapon.

Viewed in the light of the record, we do not think the trial court abused its discretion in' holding that the absent testimony would not probably have brought about a different result.

There is complaint made that one of the witnesses testified that the deceased wore an overcoat and that there was a hole in the overcoat on the side corresponding with the wound upon the body of the deceased. The witness, it seems, identified the overcoat in the presence of the jury; also, pointed out the hole. After this was done, counsel for appellant objected to a further exhibition of the coat to the jury. This objection was sustained. The bill does not reveal error. It is not made to appear from it that the clothing did not illustrate some controverted issue. Moreover, his objection to its exhibition to the jury was promptly sustained as soon as it was made.

The evidence supports the verdict. There is no error justifying a reversal of the judgment. It is therefore affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant raises but two points, the first being that we erred in sustaining the action of the lower court in overruling his application for continuance. The bill of exceptions taken to the refusal of the continuance shows that complaint was then made of such refusal only on the ground that the witness Flourney was not present. By Flourney appellant expected to prove communicated threats. From the statement of facts we observe that a number of other witnesses testified to communicated threats equally as serious as 'those claimed to be desired from the absent witness. This testimony was not controverted and the state attempted to make no issue upon the proposition of threats having been made or communicated. In McDowell v. State, 69 Tex. Cr. R. 545, 155 S. W. 521, we held it not error to refuse a continuance for the absence of witnesses to testify concerning undisputed matters. The same principle applies here. While it is generally held that the question of cumulative testimony will not be considered in passing upon the refusal of a first application^ for continuance, still where the testimony for the defense shows the establishment without dispute of the issue to which the absent testimony would go, we think the question becomes one then to be left largely to the discretion of the trial judge in passing on the motion for new trial. When a motion for new trial is based upon the absence of witnesses for whom a continuance was asked, the trial court is necessarily given much discretion in determining the question as to whether or not had the absent testimony been present it would likely have produced a different result. Viewing the action of the trial judge in the instant ease in this light and taking into consideration the fact that the testimony for the accused showed without controversy that threats were made and' communicated, we would not feel inclined to hold that he should have granted a new trial because of the overruling of the continuance, nor that he exceeded his discretion in concluding that had the absent testimony been present it would not have produced a different result. Nor do we doubt the lack of showing of diligence for such witness.

The only other question complained of is that when a witness was on the stand the overcoat worn by deceased was shown him and he was asked in reference to a bullet hole. .It is not shown that there was any blood on the coat, and we know of no case in which this court has reversed for the sole error of the production of a garment worn by the deceased at the time of the homicide. The record shows that when appellant objected to any questions regarding the coat, same were sustained. We do not believe that in such ease it is possible for any injury to have resulted to the accused.

A number of affidavits appear attached to appellant’s motion for rehearing which we cannot consider because upon matters which should have been presented in connection with the motion for new trial.

The motion for rehearing will be overruled. 
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