
    PACE v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 8, 1913.
    Rehearing Denied Feb. 5, 1913.)
    1. Criminal Law (§ 1111) — Appeal—Bill of Exceptions.
    One accepting and filing a bill of exceptions as qualified by the judge is bound by such qualification.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 4411-4420; Dec. Dig. § 1111.]
    2. Criminal Law (§ 598) — Continuance— Absence of Witness — Diligence.
    The court did not err in refusing to continue a case for absence of a witness who had lived in the county through two trials, was a great friend of the defendant, and had never been summoned.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    3. Criminal Law (§ 59G) — Continuance-Absence of Witness — Admissions.
    The refusal to grant a continuance for the absence of a witness who would testify to things already admitted by the state was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. § 596.]
    4. Criminal Law (§ 614) — Continuance-Absence of Witnesses — Cumulative Testimony.
    The refusal to grant a second application for a continuance for absence of a witness whose testimony would 'be but cumulative of the testimony of a number of' other witnesses was not error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1312-1314; Dec. Dig. § 614.]
    5. Criminal Law (§ 603) — Continuance— Application— Sufficiency.
    An application for a continuance for absence of witnesses, which does not state that the witnesses are not “absent by the procurement and consent of defendant,” is insufficient.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1348-1361; Dec. Dig. § 603.]
    6. Criminal Law (§ 543) — Evidence at Former Trial — Reproduction — Absent Witness.
    Testimony of two witnesses that H. lived in Arkansas and is now there and does not reside any more in Texas is a sufficient predicate to authorize the reproduction of his testimony on a former trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1233, 1236; Dec. Dig. § 543.]
    7. Criminal Law (§ 547) — Reproduction of Testimony— Stenographer’s Transcript.
    The court did not err in permitting the Stenographer to reproduce testimony of a former trial as transcribed by him, where the stenographer testified that it was a correct transcript.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1237-1248; Dec. Dig. § 547.]
    8. Homicide (§ 158) — -¡Evidence—Remarks oe Defendant.
    A statement by defendant that “he would kill anybody who killed his hogs” was admissible, where, taken in connection with the remaining testimony, it clearly points to deceased as the person of whom defendant was speaking.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. |§ 293-296; Dec. Dig. § 158.]
    9. Criminal Law (§ 1090) — Appeal—Bill oe Exceptions,
    A complaint in the motion for new trial, as to the reproduction of testimony of a witness at a former trial, to which no bill of exceptions was reserved, cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789. 2803-2827, 2927, 2928, 2946, 3204; Dec. Dig. § 1090.]
    10. Criminal Law (§ 543) — Reproduction oe Testimony — Predicate.
    Testimony by a witness that M. was living in Louisiana and not in Texas, and that he received a letter from him the day before from some place in Louisiana, was a sufficient predicate to authorize the reproduction of his testimony given on a former trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1233, 1236; Dec. Dig. § 543.]
    11. Criminal Law (§ 778) — Instructions— Reasonable Doubt.
    - Where defendant contended that C. killed the deceased, an instruction that, “if you believe from the evidence or have a reasonable doubt that C. killed deceased, then you will find defendant not guilty,” was a proper submission of the issue, and did not shift the burden to the defendant to show that C. did 'the killing.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1857, I960, 1967; Dec. Dig. § 778.]
    12. Homicide (§ 309) — Theory oe Case — Instructions — Manslaughter.
    Where the state’s evidence was that a killing was without excuse, mitigation, or justification, and the defense ivas a denial of the killing, the court properly refused to charge on manslaughter.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649-056; Dec. Dig. § 309.]
    Appeal from District Court, Cass County; P. A. Turner, Judge.
    Henry Pace was convicted of murder in the second degree, and he appeals.
    Affirmed.
    R. D. Hart and Mahaffey & Thomas, all of Texarkana, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
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      For otter cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

This is the third appeal in this case, the .report of the opinions on the former appeals being reported in 58 Tex. Cr. R. 90, 124 S. W. 949, and 61 Tex. Cr. R. 436, 135 S. W. 379. In those cases will be found a sufficient statement of the evidence to render it unnecessary to state the facts here. Appellant was again found guilty of murder in the second degree; his punishment being assessed at five years’ confinement in the penitentiary.

Defendant filed an application to continue the case on account of the absence of Mrs. John Fricks and Charley Kyle. In approving the bill the court states: “The above and foregoing bill of exceptions approved, allowed, and ordered filed as a part of the record in this cause, with the following explanation: Mrs. Fricks was present at the first trial of defendant, and was not put on the stand. At his second trial defendant made an application to continue because she was sick and could not attend it; was overruled. She and her husband lived in Bowie county. Her father lived near Atlanta, in Cass county. On February 6th this case was set for Monday, 19th of February. On Sunday she, her husband and children, left home in Bowie county and went to her father’s in Cass county. Her husband came to court on Monday. I was reliably informed that Mrs. Fricks visited her father’s home until after the trial and returned with her family to her own home. Her husband was firm friend of defendant and Dick Cain, and attended all their trials, even the two examining trials. He was active in their defense. Several witnesses on this trial testified to admissions made by Dick Cain that he killed deceased. Charley Kyle was a close friend of defendant, and lived for a long time near him in Bowie county after this indictment, and had never been summoned.” These facts, apparently, defendant recognized to be true as he accepts the bill and files it, and in consequence must have known he would be bound by the qualification. Hardy v. State, 31 Tex. Cr. R. 289, 20 S. W. 561; Levine v. State, 35 Tex. Cr. R. 647, 34 S. W. 969; Blain v. State, 34 Tex. Cr. R. 448, 31 S. W. 368.

The diligence as to the witness Kyle is insufficient; and the witness McLimore virtually admits all he states he expects to prove by Mrs. Fricks McLimore had said and done.

As to the statements of Gain, a number of witnesses testify to the same facts, ánd this would be but, cumulative of their testimony; and this being the second application for a continuance this would not present error.

But, in addition to this, the application is insufficient in law, in that it does not state that the witnesses are not “absent by the procurement and consent of defendant.” White v. State, 9 Tex. App. 41.

The defendant objected to the testimony of Frank Hill being reproduced. The first ground of the objection is that no sufficient predicate had been laid. S. T. Rudy, testified: “I know Frank Hill, who testified on a previous trial of this case. He lives in De Queen, state of Arkansas. He is now at that place. He has lived in Arkansas for a year. He does not live or reside in Texas. He is my son-in-law.” Webster Rudy testified: “Frank Hill is my brother-in-law. He lives in De Queen, Arkansas. His wife is at my father’s house in Miller county, Arkansas. Have seen him there twice within the last month.” This was a sufficient predicate to authorize the reproduction of the testimony. Post v. State, 10 Tex. App. 593; Conner v. State, 23 Tex. App. 383, 5 S. W. 189; Peddy v. State, 31 Tex. Cr. R. 549, 21 S. W. 542; Robertson v. State, 63 Tex. Cr. R. 216, 142 S. W. 533.

The second objection was that the court erred in permitting the stenographer to reproduce the testimony as transcribed by him. The stenographer testified that it was a correct transcript of the testimony and the court did not err. Stringfellow v. State, 42 Tex. Cr. R. 589, 61 S. W. 719; Morawitz v. State, 49 Tex. Cr. R. 368, 91 S. W. 227; Casey v. State, 50 Tex. Cr. R 394, 97 S. W. 496; Arnwine v. State, 54 Tex. Cr. R. 216, 114 S. W. 796; Cornelius v. State, 54 Tex. Cr. R. 176, 112 S. W. 1050; Underhill on Crim. Elv. § -267.

In bills 4 and 5 it is complained that S. T. Rudy and Frank 1-Iill were permitted to testify that appellant came to Rudy’s house the evening of the killing, and while there stated that “he would kill anybody who killed his hogs.” When we take the connection of this remark, together with the remaining portion of the testimony, it clearly individuates the deceased as the person of whom appellant was speaking; and this portion of the conversation was properly held to be admissible on the former appeal in this case. Pace v. State, 58 Tex. Cr. R. 94, 124 S. W. 949. The court on this trial excluded all that part of the conversation which this court on the former appeal held to be inadmissible.

An isolated statement in the testimony of Watts McLimore is taken out and excepted to. When the testimony of the witness is read, it is seen that the testimony is clearly admissible, and shows that when leaving Rudy’s house he had already conceived the idea of killing deceased, and carried it out less than half an hour afterwards.

The complaint in the motion for new trial, as to the reproduction of the testimony of the witness Watts McLimore, cannot be considered, as no bill of exceptions was reserved, if it was objected to. However, were the matter properly presented, the court did not err in admitting the testimony. Mrs. Jack Porterfield testified: “I am a sister of Watts McLimore. I live at Vivian, Louisiana. Watts McLimore lives at Vivian, Louisiana. He has been living there now for two or three years. I left Vivian yesterday. He was not there then. He had gone off to some place in Louisiana. I have forgotten the name of the place. I received a letter from him yesterday written from that place. He is now in the state of Louisiana and not in Texas.” This was a sufficient predicate to authorize the introduction of the testimony.

Objection is again made to the charge of the court on accomplice testimony. This court criticised the charge of the court in this respect on the two former appeals, but in writing his charge on this trial the court conformed his charge to the holding of this court in Brown v. State, 57 Tex. Cr. R. 576, 124 S. W. 101; King v. State, 57 Tex. Cr. R. 363, 123 S. W. 135, and other cases.

The complaint that the court erred in submitting the question of whether or not Watts McLimore was an accomplice, and in not peremptorily instructing them that he was an accomplice, was decided adversely to defendant’s contention on the former appeal in this case. Pace v. State, 58 Tex. Cr. R. 96, 124 S. W. 949. The same may be said as to the submission of this issue as to the witness Don Cochran.

It is insisted that the court erred in instructing the jury: “If you believe from the evidence or have a reasonable doubt that Dick Cain shot and thereby killed said Felix Grundy, then you will find the defendant not guilty.” It was the contention of defendant that Cain was the person who shot and killed deceased, and this was a proper submission of that issue, and it does not shift the burden on defendant to prove that Cain killed him. The court specifically- tells the jury if they have a reasonable doubt in regard to the matter to acquit the defendant. Blocker v. State, 55 Tex. Cr. R. 37, 114 S. W. 814, 131 Am. St. Rep. 772. And having given this charge, it was not necessary to give the special charge requested in regard to this issue.

The facts in the case do not raise the issue of manslaughter, and the court did not err in failing to charge the jury on that degree of homicide. If the state’s evidence is to be believed, the -killing was without excuse, mitigation, or justification. If the defendant’s theory is true, he did not kill deceased; or, if he did, he was justified in so doing. These issues were all fairly and fully submitted to the jury by the court, and defendant, we think, has had a fair and impartial trial.

The judgment is affirmed.  