
    SANCHEZ v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 19, 1913.)
    1. Criminal Law (§ 662)—Right to Confrontation—Testimony on Former Trial.
    One’s right to confrontation is not violated by admission of testimony given on a former trial by a witness wbo bas removed from the state.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3, 1538-1548; Dec. Dig. § 662.]
    2. CRIMINAL Law (§ 543) — Evidence at Former Triait — Predicate.
    It is sufficient predicate for admission of testimony of a witness, given on a former trial, that his father testifies he is in a foreign country, and that he has a letter from him stating that he is employed there.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1233, 1236; Dec. Dig. § 543.]
    3. Criminal Law (§ 789) — Reasonable Doubt — Instructio ns .
    Nothing further than a charge, in accordance with V/hite’s Ann. Code Cr. Proc. art. 765, that defendant is presumed innocent till his guilt is established beyond a reasonable doubt, and, in case the jury, have a reasonable doubt as to his guilt, they will acquit, need be given on the subject of reasonable doubt.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1849, 1904-1922, 1960, 1967; Dec. Dig. § 789.]
    4. Homicide (§ 309) — Instructions—Manslaughter.
    The evidence not raising the issue of manslaughter, a charge thereon need not be given.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 649-656; Dec. Dig. § 309.]
    5. Homicide (§ 164) — Evidence—Size and Age op Parties.
    Evidence of the relative size of defendant and deceased and their respective ages is admissible; the evidence, as a whole, making this a material issue.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 318; Dec. Dig. § 164.]
    Appeal from District Court, Goliad County; John M. Green, Judge.
    Thomas Sanchez was convicted of murder, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted for and convicted of murder in the first degree, and his punishment assessed at death.

This is the second appeal in this case; the opinion on the former appeal being reported in 149 S. W. 124. The facts are so fully stated in the former opinion we do not deem it necessary to recite any of the testimony.

The first bill of exceptions shows that the testimony of Cyrus Parks, given on the former trial, was reproduced, to which defendant objected on two grounds: First, that no sufficient predicate was laid; and, second, on the ground that defendant was entitled to be confronted with the witnesses against him. This latter proposition was so fully discussed in Robertson v. State, 142 S. W. 533, we do not deem it necessary to do so again. As to the first objection, the absent witness’ father testified; “I know Cyrus Parks; he is my son, and is 37 years old. 1-Ie is not in Texas; he is in Central America. We have a letter from him, and he wrote us what he was doing in Central America. He is employed down there.” This was a sufficient predicate to admit the testimony. Whorton v. State, 152 S. W. 1082.

The court gave the following charge on reasonable doubt: “The defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt; and, in case you have a reasonable doubt as to defendant’s guilt, you will acquit him and say by your verdict ‘not guilty.’ ” This definition is in accordance with article 765 of the Code of Criminal Procedure, and it has always been held that this charge needs no amplification or explanation. Thompson v. State, 37 Tex. Cr. R. 227, 38 S. W. 785, 39 S. W. 298; Hurley v. State, 35 Tex. Cr. R. 282, 33 S. W. 354. The court did not err in refusing the special charge seeking to have a definition of “reasonable doubt” given.

As shown by the testimony copied in the opinion on the former appeal, the issue of manslaughter was not raised by the testimony; therefore the court did not err in refusing the special charge relating to manslaughter, the evidence on this trial being the same, in substance, as that adduced on the former trial.

The fifth special charge was not applicable to the facts in this case, and the other special charges requested were, in so far as they presented the law, given in the court’s main charge.

There was no error in the court permitting witnesses to testify as to the relative size of appellant and deceased and their respective ages. The testimony, as a whole, made this a material issue.

The evidence fully sustains the verdict, and every issue made by the testimony was fairly submitted to the jury in the court’s charge.

The judgment is affirmed.  