
    BEAVER v. STATE.
    (Court of Criminal Appeals of Texas.
    Nov. 15, 1911.
    Rehearing Denied Jan. 10, 1912.)
    1. Criminal Law (§ 614)— Continúan ce— Diligence — Third Application.
    The rule as to diligence is much more strict upon a third application for a continuance to procure an absent witness than it is upon a first application.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1314; Dec. Dig. § 614.]
    2. Criminal Law (§ 614) — Continuance-Absent Witnesses — Diligence.
    The indictment was returned on November 13, 1909, and the trial term convened January 2. 1911, and the case was tried on February 11, 1911, and process was issued for a witness for whose absence a continuance was asked on February 4, 1911; it appearing that the witness was temporarily absent from the state. Held, that there was not sufficient diligence to authorize the granting of a third application for a continuance to procure the witness.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1314; Dec. Dig. § 614.]
    3. Homicide (§ 135) — Indictment—Description of Instrument.
    An indictment, alleging that the instrument used by accused to commit the homicide was a piece of pipe, sufficiently charged the nature of the instrument with which the crime was committed.
    [Ed. Note. — For other cases, see Homicide, .Cent. Dig. §§ 215-223; Dec.. Dig. § 135.]
    4. Jury (§ 58) — Impaneling Jury — Jury Wheel — Validity of Statutes.
    The statute known as the “Jury Wheel Law” is. not unconstitutional.
    [Ed. Note. — For other cases, see Jury, Dec. Dig. § 58.]
    5. Homicide (§ 300) — Instructions—Self-Defense.
    A charge that, if accused killed decedent while defending himself against the acts, or acts and words, of decedent, or the acts and words of those acting with him, and that his life was put in danger, or that he was put in danger of serious bodily harm, the jury should acquit was not objectionable as requiring the jury to find that accused acted against the combined acts and conduct of all the parties, before they could acquit on the ground of self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614-632; Dec. Dig. § 300.]
    6. Homicide (§ 309) — Instructions—Manslaughter.
    The court instructed in a homicide ease that, if accused defended against the acts, or acts and words, of decedent, or the acts and words of those acting with him, etc., and his mind was agitated beyond cool reflection, and he did not believe that his life was in danger, the jury should acquit of murder and convict of manslaughter. Held, that the charge was not objectionable as requiring the jury to find that accused acted against the combined acts and conduct of all of the parties, before they could find him guilty of manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649-656; Dec. Dig. § 309.]
    7. Criminal Law (§ 719) — Improper Argument.
    ' Prosecuting attorneys should keep within the record in their arguments, and should not comment in argument upon objections made by accused to the introduction of remarks made by him to the officers when arrested; they being in fact incompetent.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1669; Dec. Dig. § 719.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Charlie Beaver was convicted of second-degree murder, and he appeals.
    Affirmed.
    Wiley & Baskett, 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
    
   DAVIDSON, C. J.

Appellant was convicted of murder in the second degree; his punishment being assessed at five years confinement in the penitentiary.

1. When the case was called for trial, appellant moved for a continuance on account of the absence of A. F. Slater, Viola Thompson, and Mrs. Woodard. Slater and Viola Thompson appeared and testified. Mrs. Woodard, it is alleged, was absent from the state, temporarily in the state of Arkansas. This is the third application for continuance. By Mrs. Woodard appellant expected to prove that she heard, just before the tragedy, parties on a bridge quarreling and cursing among themselves, and while the difficulty was in progress, or about its termination, two men ran away from the bridge. The theory of appellant was that these two men were there in addition to those with whom he was engaged in the difficulty — the two Lees and the deceased, Wash. The facts expected to be proved by Mrs. Woodard were proved by Viola Thompson, except the fact that two men ran away from the bridge during the difficulty. This being the third application, the rule as to diligence is much more strict than it is in regard to the first application for a continuance. The diligence is about this way: The indictment was returned on November 13, 1909; the court convened, at which this trial was had, on January 2, 1911; the cause was tried on February 11, 1911; process for Mrs. Woodard issued on February 4, 1911. The statement of these facts would show a want of diligence. When Mrs. Woodard left Dallas for Arkansas is not stated, and no reason given why process was not issued before the 4th of February, 1911. Had process issued in due time, the attendance of the witness might easily have been obtained. In any event, we are of opinion the testimony is not of very great importance in the case. The theory of appellant was that when he drove upon the bridge the deceased, Wash, and parties were engaged in quarreling and cursing among themselves, and immediately began an attack upon him, as he believed, for the purpose of taking his life or committing the crime of robbery. The theory of the state was that Wash, the deceased, was very drunk, as was one of the Lees, and that in a drunken, staggering condition the deceased, Wash, fell or walked against the horses appellant was driving, and he immediately jumped out of the wagon and began an.attack on him with a piece of iron pipe, with which he mashed his skull, which resulted in his death. Appellant himself testified, and as we understand his testimony he does not mention the two men who were engaged in the difficulty and ran away; but, be that as it may, the diligence is insufficient and the testimony is not of serious character.

2. Motion was made to set aside the indictment because the description of the instrument or means by which deceased was killed is insufficient. The indictment charges that the instrument used by appellant was a piece of pipe. Appellant cites, among others, the case of Drye v. State, 14 Tex. App. 185. We are of opinion that this case does not support his contention. The indictment in the Drye Case charged that the accused did, with malice aforethought, kill and murder O. H. Lund, setting out no weapon or means by which the homicide was brought about, just simply the broad allegation that he did kill and murder Lund. The court held that indictment fatally defective, and correctly so. The court said: “An indictment for murder ‘must set forth the means by which the life was extinguished; hence, if it was by a weapon, it must say what the weapon was, or allege it to be unknown to the grand jury. If it describes the killing as done in a way requiring no weapon, for example, by the use of the hands, none other need be mentioned. The particulars of the weapon, as that it was of such a length and breadth, need not be given; to say, for example, that it was “a certain wooden stick” will suffice. And if stones were used their number need not be stated. A “loaded pistol” will do.’ 2 Bish. Crim. Proc. (3d Ed.) § 514; State v. Williams, 36 Tex. 352; Dwyer v. State, 12 Tex. App. 535; Peterson v. State, 12 Tex. App. 650.” To the same effect is the case of State v. Smith, 61 N. C. 340; Rex v. O’Brien, 2 C. & K. 115; State v. Owen, 5 N. C. 452, 4 Am. Dec. 571; Wharton on Homicide, § 565; Bowens v. State, 106 Ga. 760, 32 S. E. 666.

The Bowens Case, supra, holds that an indictment, charging the homicide to have been committed by beating deceased with a piece of iron, need not specifically set forth the size or weight thereof. We are of opinion that the indictment sufficiently describes the instrument, and there was no error in overruling the demurrers.

3. There was also an attack made upon the jury, because it was drawn under what is known as the “Jury Wheel Law,” contending and alleging that that law was unconstitutional and void. The writer has expressed himself very freely and fully heretofore in dissenting opinions to the effect that such law was unconstitutional and void. The majority of this court, however, in those cases settled it against appellant’s contention.

4. There are some criticisms of the charge, in that the court required the jury to believe defendant acted against the combined acts and conduct of all the parties, before they could acquit under the law of self-defense, as well as to mitigate it under the law of manslaughter. The criticisms of those charges are not well taken. The court instructed the jury that if the defendant defended against the act, or acts and words, of the deceased, or the acts and words of those acting with him, etc., and that his life was put in danger, or he was in danger of serious bodily injury, they would acquit; or if, under the same circumstances, he defended against an attempted robbery he would not be guilty. The same charge was given with reference to manslaughter, qualified to the extent that, if appellant did not believe that his life was in danger, but that his mind was agitated beyond cool reflection, and his life not in danger, they would give him the benefit of that phase of the law, and acquit him of murder and convict of manslaughter. We are of opinion the charge is sufficient.

5. There is complaint made of the remarks of the county attorney, based upon a ruling of the court. When the state offered to prove certain remarks made by appellant to the officers at the time of his arrest, upon objection, these statements were excluded. The county attorney commented upon the fact that appellant did interpose objection, and the court sustained defendant, and would not let him prove the remarks made by appellant, and that appellant desired to exclude, rather than to let the light in before the jury. Some of the decisions of this court go to the extent of holding it is subject of comment by the prosecution that the accused interposed objections to testimony. But we desire here to say that prosecuting officers should keep within the record, and not seek to obtain judgments by unfair arguments. This character of complaint comes before this court in many cases. We may feel called upon to put an end to such arguments and statements by the officers in no uncertain way.

Finding no error in the record, the judgment is ordered to be affirmed.  