
    WADE v. STATE.
    (No. 9667.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1926.
    Rehearing Denied March 17, 1926.)
    1. Criminal law <&wkey;!043(2).
    Under Vernon’s Ann. Code Cr. Proe. 1916, art. 744, objection to question that it was immaterial and irrelevant held insufficient to obtain review thereof.
    2. Witnesses <&wkey;277(2).
    In prosecution for murder, defended on ground of insanity, question why accused did not kill some other person besides deceased constituted permissible ■ cross-examination.
    3. Criminal" law &wkey;>392 — Subpoena for witness had no proper place in evidence.
    In prosecution of accused for murder of her husband, in which she claimed that her husband had been intimate with another woman, subpoena of accused for such other woman had no proper place in evidence, in absence of special showing making it admissible.
    4. Criminal law <&wkey;385.
    Exclusion from evidence of accused’s application for continuance was proper.
    5. Criminal law <&wkey;723(4) — Statement of district attorney to jury that he was tired of verdicts of manslaughter held not to constitute error.
    In prosecution for murder, alleged statement of district attorney to jury that he was tire of jury’s returning verdicts of manslaughter, without showing as to why such argument was improper, was not error.
    6. Criminal law t&wkey;595(l), 598(2) — Overruling application for continuance in murder trial for absence of two witnesses, not showing. diligence as to one and showing testimony expected from other was irrelevant, held proper.
    In prosecution for murder, overruling application for continuance for absence of two wit-. nesses, subpoena for neither of which was attached to motion, which failed to show diligence as to one witness, and which showed that testimony expected.from other had no legitimate bearing on case, was proper.
    On Motion for Rehearing.
    7. Criminal law <&wkey;>596(l) — Refusal of continuance for absent witness, whose expected testimony was given by other witnesses and was practically undisputed," held not error.
    In prosecution for murder, refusal of continuance because of absence of witness, whose expected testimony was given by other witnesses and was practically undisputed by state, was not error, especially where expected testimony would have been of character incriminating such witness and tending to disgrace her, and which she could have refused to give.,
    Appeal from District Court, "Wichita County; H. R. Wilson, Judge.
    Bertha Wade was convicted of murder, and she appeals.
    Affirmed.
    Davenport, Cummings & Crain, of Wichita Falls, for appellant.
    Sam D. Stinson. State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   LATTIMORE, J.

From conviction for murder in the district 'court of Wichita county, with punishment fixed at five years in the penitentiary, this appeal is taken.

Appellant killed her husband and sought acquittal on the ground of insanity, or at least the reduction of the offense to manslaughter. She claimed that her husband had been intimate with one Alice Meredith, and that he had mistreated her, and that this with other things preyed on her mind until it became affected. She shot her husband one night about 1 o’clock, at which time he was lying in tie bed, and if is not .claimed that be was doing anything manifesting any intention to barm appellant.

The only objection interposed by appellant to the question' set out in bill of exceptions No. 1 was that same was immaterial and irrelevant. Such an objection bad often been held insufficient by this court. See cases collated under article 744, Vernon’s Ann. Code Or. Proc. 1916; Hickey v. State, 138 S. W. 1051, 62 Tex. Cr. R. 568; Stapp v. State, 144 S. W. 941, 65 Tex. Cr. R. 331; Simms v. State, 148 S. W. 786, 67 Tex. Cr. R. 98.

On cross-examination appellant was asked the question: “If you did not know right from wrong, why didn’t you go out and sbek Alice Meredith and kill her?” It is not shown that this question was answered, but the bill shows that the state’s attorney then asked appellant: “Can you tell the jury why it was you didn’t kill Mildred (daughter of deceased) or Alice Meredith or some other person beside your husband?” The only objection urged to this was that it was irrelevant and immaterial. The objection is not sufficient upon the authorities above mentioned. The answer of witness was that she did not know why she did not kill somebody else. In our opinion the cross-examination was permissible.

Appellant offered in evidence a subpoena, issued at the instance of the defense,' for Alice Meredith. We are 'wholly unable to comprehend the purpose back of the introduction of said subpoena. We perceive'no issue before the jury upon which same would have any legitimate bearing.

Appellant offered in evidence her application for a continuance in this case. We think same was properly rejected, and that same had no legitimate place in the testimony.

There was a complaint directed at the remark of the district attorney to the jury that he was tired of juries returning verdicts of manslaughter. Appellant sought to have the jury instructed not to consider such argument, which .request was refused. There is nothing in „the bill which manifests the impropriety of the argument referred to. No reference was made to the verdict of any particular jury, nor is it shown that the matter was .not in legitimate reply to other argument in the case, n'or ¿re the surroundings or settings of said, argument put in the bill.

There is a bill to the overruling of an application for a continuance sought because of- the absence of two witnesses. We are of opinion that the application fails to show diligence as to the witness Smith, and that the testimony stated to be that expected of the witness Meredith was not such as would have any legitimate bearing upon the issues of this case. No subpcena for either witness is- attached to the motion, as is generally held necessary in order to apprise this court of the diligence used.

We have carefully examined and considered each contention made by appellant, and, being unable to agree that any of same are sound, the judgment will be affirmed.

On Motion for Rehearing.

Appellant urges, in her motion only, that we erred in upholding.the action of the trial court in refusing to grant her application for continuance because of the absence of Alice Meredith. In addition to what'we said in our former opinion on this point, we call attention to the fact that the bill of exceptions presenting this complaint is qualified -by the statement of the trial court that the testimony expected of said witness was given by other witnesses for the defense and was practically undisputed by the state. Mr. Branch, on page 189 of his Annotated P. C., cites many" authorities supporting the proposition that, if substantially the same testimony as that absent be produced at the trial, the discretion of the trial court in refusing the continuance will not be revised on appeal. The court’s qualification is not questioned.

We further note that the testimony expected from said witness would have been of a character incriminating to her and tending to bring her into disgrace. In such case had the witness been present, she could not bave been compelled to give the testimony referred to, and a refusal to continue for such witness was not error. Griffith v. State, 138 S. W. 1016, 62 Tex. Cr. R., 642, opinion by Davidson, P. J. This is the only point raised in the motion.

The motion for rehearing will be overruled. 
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