
    WATSON v. STATE.
    (No. 4812.)
    (Court of Criminal Appeals of Texas.
    March 6, 1918.)
    1. CRIMINAL Law <&wkey;598(6) — Continuance-Absent Witness — Diligence.
    Under indictment returned January 4th, when case was called for trial July 20 th, issuance of process for witness on June 26th did not show sufficient diligence to warrant continuance, where accused knew of the testimony and the witness’ absence at an earlier date.
    2. Homicibe &wkey;332(3) — Appeal—Question op Fact.
    In prosecution for murder, where the testimony conflicted, and that as to self-defense might' have warranted acquittal, the jury’s verdict convicting accused could not be set aside.
    3. Judges <&wkey;25(2) — Special Judges — POWERS.
    Where regular judge formed National Guard company, and the bar elected a special judge, and the regular judge, inducted into federal service, resigned as judge, the special judge had power to finish the work of the then unfinished term.
    Appeal from District Court, San Augustine County; Garland Smith, Special Judge.
    John Watson was convicted of manslaughter, and he appeals.
    Affirmed.
    Wm. McDonald, of San Augustine, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
    
   DAVIDSON, P. J.

Appellant was convicted of manslaughter and allotted five years in the penitentiary.

The indictment was returned on the 4th day of January, 1916. Appellant filed an application for a continuance when his case was called for trial on the 20th of July, 1917, alleging that process was issued on the 26th day of June, 1917. There is nothing in the record to show why process was not issued at an earlier date. The testimony of the absent witnesses was evidently known, and no excuse is given why process was not issued at an earlier date. On the question of diligence some reason should have been assigned why the process had not been so issued explaining or exousing the delay. The absent testimony was expected to show communicated threats of the deceased against appellant. We are of opinion that the diligence is not sufficient to require a reversal in view of this record.

It is contended the evidence is not sufficient to support the verdict and judgment. Wé are not prepared to assent to this proposition. The state’s case shows sufficient evidence to justify the jury in their conclusion as well as the refusal of the court to grant a new trial. The testimony of appellant raises the question of self-defense. There was a sharp issue on this question. The jury could have believed appellant’s theory and acquitted, but they solved this matter adversely, and in view of the testimony we would not be justified in setting aside the judgment for this reason.

There ivas a question raised with reference to the authority of the trial judge to try the case. The regular judge was not present. Upon convening the court the attorneys selected a member of the bar, Hon. Garland Smith, to preside over the court during the term, and as such special judge he tried appellant’s case. In the motion for a new- trial it is alleged that Judge Blaekshear, the regular judge, had raised a company for National Guard ■ Service, and thereby became a federal officer as its captain. There is also a contention in the motion for new trial that Judge Blaekshear ceased to be judge by virtue of his military office at the time of the trial of appellant. The facts with reference to that matter are the same in this ease as in the case of Lowe v. State, 201 S. W. 986. this day decided in an opinion written by Judge Morrow, where the facts are set out and the matter discussed at some length. We are of opinion that the conclusion in that case was correctly reached, and the trial judge was authorized to try this case and finish the work of that particular term, although Judge Blaekshear may have been sworn into service before the end of the term for which Judge Smith was elected special judge. It is not deemed necessary to go into the reasonings in this case as those have been given in the opinion by Judge Morrow in the case above mentioned.

The judgment herein will therefore be affirmed. 
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