
    IRVIN v. STATE.
    (Court of Criminal Appeals of Texas.
    March 20, 1912.
    Rehearing Denied June 12, 1912.)
    1. Criminal Law (§ 598) — Continuance-Diligence.
    On January 17, 1911, the case was set for January 25th. On that date it was reset for February 1st and again for February 8th, on which date it was called for trial. Defendant applied for a continuance for absence of witnesses. No process was requested for one of them until January 30th, when process was issued and returned not found. On February 4th a subpeena was issued for the same witness directed to another county returnable February 8th, and this subpeena was after-wards returned by the sheriff of the county to which it was issued, stating that he was unable to find the witness and had only one day in which to search for him. Held, that a continuance was properly denied for lack of sufficient diligence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    2. Homicide (§ 338) — Evidence—Appeal-Harmless Error.
    In a prosecution for homicide, the court permitted a witness, over defendant’s objection, to state that the witness’ mother left the house where defendant and deceased and others had congregated, before the witness did, and that witness and her mother did not start home together because the mother was indisposed. Held, that such evidence, if immaterial, was not prejudicial to accused.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 709-713; Dec. Dig. § 338.]
    3. Criminal Law (§ 1093) — Bill oe Exceptions — Statements oe Fact — Approval.
    Matters stated as objections in a bill of exceptions will not be considered as approved as a statement of a fact by the judge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2828-2833, 2919, 2920; Dec. Dig. § 1093.]
    4. Witnesses ’ (§ 406) — Contradiction — Evidence — Materiality.
    Where defendant was permitted to prove anything tending to show that he and a state’s witness were together on the night of the homicide and anything showing intimacy of their relations to each other, and no objection wasi made by the state to defendant’s showing that the witness left a watermelon cutting party and went into the house where defendant was, it was not error to exclude the details of the watermelon cutting and the conduct of the witness which did not concern defendant’s conduct and did not tend to contradict the witness’ testimony. »
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1276-1279; Dec. Dig. § 406.]
    5. Criminal Law (§ 656) — Rulings on Evidence — Statements by Court.
    A remark by the court, in the absence of the ’ jury, that he did not see the bearing of certain offered proof on the case, was not error; the evidence excluded being immaterial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1524-1533; Dec. Dig. § 656.]
    6. Witnesses (§ 372) — Impeachment— Foundation.
    Where questions were asked of a witness to show his interest and bias in defendant’s favor for the purpose of impeachment, the court properly refused to permit defendant to go into the details of what the witness had done and said with reference to the subject inquired about.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1192-1199; Dec. Dig. § 372.]
    7. Witnesses (§ 372) — Impeachment.
    It is permissible for the adverse party to show the animus and prejudice of the witness and its extent, and great latitude is allowed in the examination where the object is to impeach, a witness, the party being authorized to prove declarations and actions of the witness tending to show his bias, interest, and prejudice or any other mental state or status, which, fairly construed, may tend to alfect his credibility.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1192-1199; Dec. Dig. § 372.]
    8. Homicide (§ 340) — Instructions—Omission to Charge.
    In a prosecution for homicide, defendant testified that, just before he killed deceased, the latter struck him a blow with a buggy whip across the neck and shoulders causing him pain. The court gave a full charge on manslaughter and instructed that an assault and battery by deceased causing him pain and bloodshed would constitute adequate cause. Held, that defendant was not prejudiced by the court’s omission to define assault and battery and to charge that a stroke with a buggy whip would constitute that offense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 715-720; Dec. Dig. § 340.]
    Appeal from District Court, Falls County; Richard I. Munroe, Judge.
    William Henry Irvin was convicted of second degree murder, and he appeals.
    Affirmed.
    Spivey, Bartlett & Carter, of. Marlin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
       For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

The appellant was indicted for murder, convicted of murder in the second degree, and his punishment fixed at 10 years in the penitentiary.

The first assignment is that the court erred in overruling his motion for a continuance. The continuance was sought because of the absence of several witnesses none of whom had been summoned. The bill, as qualified and allowed by the court, shows that appellant “was indicted January 14, 1911. He was then in jail. On January 17th the judge had him brought into open court for the purpose of appointing counsel to represent him if he had not employed and could not employ counsel. When brought in, he stated to the court that he had employed counsel. At this time the court admonished him about issuing process for his witnesses and told him to hand to the sheriff a list of his witnesses and that the sheriff would have subpoenas issued and summon his witnesses. The case was then set for January 25th for trial. On that date the ease was crowded out because of another case on trial. It was then reset for February 1st, and on that date again crowded out and reset for February 8th, on which date it went to trial. The trial lasted two full days. The subpoena asked by the appellant for one of his witnesses was not requested and issued until January 30th, and the process returned that he was not found in Falls county. On February 4th a subpoena was asked and issued for the same witness directed to Milam county, returnable February 8th, and that subpoena was afterwards returned by the sheriff of Milam county, stating that he was unable to find the witness and that he had only one day in which to search for him. Appellant’s counsel stated that he had never seen the return of the Milam county subpoena. This was the sole diligence to locate and procure this witness. Evidence was heard by the court as to the diligence used to procure this and the other absent unserved witnesses, and in the qualification of the bill the court ’states that he-overruled the application for continuance because of lack of diligence to procure these witnesses, and the state’s evidence showed that the witnesses other than the one above mentioned were shown to be transient persons whose home and probable whereabouts were unknown, and that the only information as to their whereabouts was that they came from Arkansas and were supposed to have returned to said state or gone to the state of Oklahoma, no particular locality in either state as to where said witnesses, or either of them, might be found. The court further states that the application as to these witnesses was overruled because the facts alleged in the application as to what defendant expected to prove by them were immaterial and irrelevant, because the state did not show, or attempt to show, that any trouble between appellant and deceased had occurred at the house at which the party was given, and that there were some 25 or 30 persons present at the party and several present in the courtroom who would testify that no difficulty occurred at the house; the application for continuance showing that that was what he expected to prove by those witnesses. That on about February 1st a civil case was on trial, and that one of the attorneys for appellant asked the court to reset this case as late in the term as he could; that he had just been employed and was in the civil case which would continue several days. The court then set the case for February 8th, telling this attorney of appellant that the case would be tried on the 8th and that he must get ready, or as ready as he could for trial at that time. The trial of the civil case continued until on February 6th.” A continuance is always properly refused where there is a want of diligence. O’Neal v. State, 14 Tex. App. 582; Hart v. State, 14 Tex. App. 657; Childers v. State, 16 Tex. App. 524, and a great number of other cases cited in sections 600 and 601, White’s C. C. P., p. 393.

The next bill is by no means full and does not inform the court thereby sufficiently for it to require the court to pass on it, yet we do pass on the question raised by the bill. It is to the effect that the court permitted the state to prove by Roberta Green, one of its witnesses,- over appellant’s objections, that her mother, Emma Foster, left the house where the appellant and deceased and a large number of others were congregated at a party that night before she did, and that she and her mother did not go home or start home together. The reason given was that her mother had the cramps and for that reason started home ahead of this witness to be overtaken by them and picked up in a buggy. The appellant’s objections were that he was not present when this conversation occurred between the witness and her mother and it was immaterial. If the testimony was immaterial, which is not shown by the bill, it certainly was not of such character as to in any way injuriously affect the appellant. As to the other objection, that the appellant was not present, it will be noted that this is not stated and approved as a fact by the judge, but is stated merely as one of appellant’s objections to the testimony.

It is too well established by the uniform and long line of decisions of this court that matters stated as objections in a bill will not be considered as approved, as a statement of a fact, by the judge, and cannot be so considered by this court, to require a citation to the cases.

The next bill is to the effect that the court refused to permit appellant to prove by the witness Susie Irvin the reason why her mother desired the state’s witness Roberta Green to remain at a watermelon cutting in the yard, instead of going into the room where the appellant was, for the purpose of showing that Roberta Green and appellant were on intimate terms with each other and to contradict Roberta and her mother. The bill does not show wherein or how such testimony would have contradicted the testimony of either of these witnesses. Their testimony is in no way given. The court approved the bill, after qualifying it to the effect that defendant was allowed to prove anything going to show that the defendant and the witness Roberta Green were together and anything which may have happened to show intimacy of their relations one towards the other. That no objection was made by the state to appellant showing that the witness Roberta Green left the watermelon cutting and went into the house where appellant was, but the details of the watermelon cutting, not concerning the conduct of appellant and the witness Roberta Green, were ruled out on objections because such details were immaterial and irrelevant to any issue in the case. No error is shown in this ruling.

The next bill is to the court’s remarking in the presence of the jury that he did not think the watermelon cutting and soda water making had anything to do with the case, which was objected to because upon the weight of the evidence and tended to prejudice the jury against the defendant. Of course, if the testimony was excluded because it was immaterial, the court in effect stating so to the jury and excluding it on that account was not error.

Appellant’s next bills show that he excepted to certain questions unnecessary to repeat, asked by the state of appellant’s father, who testified on the stand for him, going to show that he was taking a great interest in the defense of the appellant — seeing witnesses thereabouts, and approaching them in an improper way and requiring the witness to answer them yes or no, and in not permitting him to go into the details of the various matters asked about. He answered each of the questions in the negative. The court, in approving the bill as to the questions asked and the negative answers given by the witness, qualified it by stating that the witness was the appellant’s father, and the questions as to what he had been doing in the way of getting up evidence were permitted for the purpose of showing his interest and bias in favor of the defendant and for showing his motives for testifying in the case and also for the purpose of laying a predicate for the impeachment of the witness. As to the court’s refusal to permit the appellant to go into the details of what the witness had done and said, the court qualified that bill by showing that the questions were asked for the purpose of laying a predicate to impeach the witness and were limited to what this witness said and did, and were not as to what the witness approached by his father might have said or done. And further that the witness having denied making such statements, and no impeaching testimony having been offered by the state, what really occurred was immaterial, irrelevant and hearsay.

It is always permissible for the adverse side to show the animus and prejudice on the part of a witness, and its extent. In such examination great latitude is allowed when the object is to impeach the credit of such witness. The adverse side may prove the declarations and acts of the witness which tend to show his bias, interest, prejudice, or any other mental state or status, which, fairly construed, might tend to affect his credibility. Pope v. State, 143 S. W. 612; Earle v. State, 142 S. W. 1181; O’Neal v. State, 57 Tex. Cr. R. 249, 122 S. W. 386.

The court charged fully and aptly on murder in the first and second degrees, manslaughter, and self-defense. Appellant requested many charges presenting various phases of the evidence and appellant’s defense, on the subject of self-defense. In addition to the court’s charge on that subject, he gave all the charges asked by appellant. The only complaint of the charge of the court is that the court did not tell the jury that a stroke with a buggy whip would constitute an assault and battery and did not define what was meant by an assault and battery. The bill and the evidence show that the appellant himself testified, though he was disputed on this point, that the deceased, at the time of the fatal difficulty and just before he was hilled by appellant struck him a blow with a buggy whip across the neck and shoulders, thereby causing1 him pain. The court gave a full charge on manslaughter, strictly in accordance with the statutes, and expressly told the jury that an assault and battery by the deceased, causing him pain or bloodshed, was an adequate cause. The appellant requested no special charge whatever on this subject. We have carefully gone over and considered the testimony and the charge of the court and, in our opinion, even if it would have been proper for the court to have defined technically an assault and battery, that under the circumstances of this case, and considering the charge as it was given, it could not and did not injuriously affect the appellant and is no ground for reversal. Article 723, C. C. P.; Godwin v. State, 39 Tex. Cr. R. 404, 46 S. W 226; Lucas v. State, 39 Tex. Cr. R. 48, 44 S. W. 825; Wright v. State, 40 Tex. Cr. R. 45, 48 S. W. 191.

The judgment will be affirmed.  