
    FLORENCE v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 15, 1911.)
    1. Ckiminal Law (§ 594) — Continuance-Discretion oe Trial Court.
    Where the facts which defendant expected to- prove, by an absent witness are cumulative, and had been admitted by the state’s witness, and the absent witness could have been produced at the trial, the denial of a continuance was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1321-1341; Dec. Dig. § 594.]
    2. Witnesses (§ 340) — Credibility—Character — Examination oe Impeaching Witness.
    Where defendant’s impeaching witnesses are permitted to testify that the reputation of certain persons for truth and veracity was bad, the defendant is not entitled to prove the reputation of such persons for “virtue and chastity.”
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1116-1121Dec. Dig. § 340.]
    3. Criminal Law (§ 728) — Appeal and Error— Necessity op Objections — Conduct oe Counsel.
    Alleged objectionable remarks of the prosecuting attorney cannot he complained' of on appeal, where defendant did not request any charge in respect to such remarks.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1689-1691; Dec. Dig. § 728.]
    4. Criminal Law (§ 117014) — Appeal and Error — Harmless Error — Examination op Witness.
    Where an objection to an improper question by the state’s attorney is sustained, and the form of the question is then corrected, the asking of the original question is not reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. § 1170%.]
    5. Criminal Law (§ 785) — Trial—Instructions — Credibility op witness — Impeaching Witnesses.
    A charge as to the effect of the testimony of impeaching witnesses is proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1776-1781, 1889-1894; Dec. Dig. § 785.]
    6.Homicide (§ 244) — Evidence—Sufficiency — Selp-Depense.
    Evidence in a homicide case held insufficient to support a plea of self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 507-509; Dec. Dig. § 244.]
    Appeal from District Court, Rusk County; W. C. Buford, Judge.
    Wallace Florence was convicted of murder in the second degree, and he appeals.
    Affirmed.
    Futch & Tipps, for appellant. C. E. Lane, Asst Atty. Gen., for the State.
    
      
      For other oases see same topie and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted in the district court of Rusk county, Tex., charged with the murder of Pit Christian, and upon a trial was convicted of murder in the second degree, and his punishment assessed at five years’ confinement in the penitentiary. The court submitted to the jury the issues of murder in the first and second degrees, manslaughter and self-defense, and there is no complaint in the motion for a new trial that the court did not properly instruct the jury in these respects.

1. The main question. raised is that the court erred in overruling appellant’s application for a continuance. One of the witnesses, Miss Bessie Woodward, upon whom the application for a continuance was based, appears by the record to have attended court and testified in the case. The only other witness named in the application is John Florence, a brother of the defendant, by whom it is stated that defendant expects to prove: (1) That Bud Woodward called his attention to the fact that there was a knife then sticking in-defendant’s back. Bud Woodward, a witness for the state, testified that he did call John Florence's attention to that fact, and it is nowhere disputed in the record. (2) That deceased, Pit Christian, struck his brother with a shotgun. This is not denied in the record. It appears from the record that Grover Bean and John Wooley had some words about who should dance the last set; that they went out doors, and were still quarreling over the matter, when defendant Florence came out of the house with the gun and threw it on Grover Bean, either in fun or in anger, and said he would make them all dance. -Bean took the gun away from him, took out the cartridge, and threw the gun on the ground when defendant cut Bean with a knife, and was himself cut by an unknown party, probably Lee Gibson, who lived with deceased. Deceased, when Bean threw the gun down, picked it up, and struck defendant with it, while he was attacking or in the act of striking Bean. (3) That the last time the witness John Florence saw the gun deceased had it. No one disputes that, when Bean took the gun away from defendant, unloaded it, and threw it down, deceased picked it up, and the entire record shows that deceased did not have the gun when he was shot.

A number of witnesses testify to all that defendant states he expected to prove by his brother, if he had testified to all that was stated in the application that it was expected to be proven by him. In fact, the material facts sought to be proven by the witness, as stated in the application, were not contested by the state’s testimony, but admitted by the state’s witnesses, and testified to by four or five of defendant’s witnesses. In qualifying the bill, the court states: “This bill of exceptions is approved, with the qualification that wire was sent to the sheriff of Montgomery county (where the application claimed the witness could be found) to know why he had not returned the process for this witness, and why he had not brought this witness to court, to which the sheriff wired that he had received no process for said witness, had none, and that he knew where said witness was, and would bring him if wanted; that the witness was a brother of defendant, and the defendant could have produced him at the trial, if they had wanted to.” Viewing the application in the light of the facts and the testimony on the trial, we do not think the court erred in overruling the application for a continuance.

2. There was no error in refusing to permit the defendant to prove the reputation of certain persons for “virtue and chastity.” The court permitted the witnesses to testify that the reputation for truth and veracity was bad. This was as far as the defendant was entitled to inquire.

3. In bills of exceptions Nos. 4, 5, and 6 defendant complains of remarks of the district attorney. The court qualified these bills, and, as qualified, no error is presented. In addition, the appellant requested no charge in regard to these matters, and in the absence of a requested charge defendant cannot complain of objectionable remarks of the prosecuting attorney. Bailey v. State, 45 S. W. 708; Garner v. State, 24 S. W. 421; Matthews v. State, 41 Tex. Cr. R. 98, 51 S. W. 915; Leggett v. State, 65 S. W. 516.

4. In bill No. 3 appellant complains of a question asked by the state’s attorney. The court states he sustained defendant’s objection, and the state's counsel changed the form so it would not be objectionable. While the question was not proper, in view of the action of the court, it presents no reversible error.

5. There was no error in the court limiting in his charge the effect of the testimony of impeaching witnesses. . It was proper he should do so.

6. The testimony in this case shows that, during the altercation between John Wooley and- Grover Bean, deceased acted the part of peacemaker, while defendant’s conduct added “fuel to the fire.” Fifteen minutes after this difficulty was over, deceased started home with his family, and, when ho had gotten about 30 steps from defendant, defendant or some one in his crowd made insulting remarks. Some words then ensued, when defendant shot deceased; deceased not being armed at the time he was shot. If a witness is to be believed, defendant, when leaving the ground, said, “1 shot the d — ■—n s-n of a b-h, and I wish I had got that d-n Grover Bean,” evidencing a spirit that was not in consonance with his plea of self-defense.

Finding no reversible error in the record, the judgment is affirmed.  