
    SMITH v. STATE.
    (No. 9889.)
    (Court of Criminal Appeals of Texas.
    May 5, 1926.
    Rehearing Granted June 23, 1926.)
    I.Criminal law <&wkey;595(4).
    Before refusal of continuance will be held erroneous, materiality of absent testimony must be shown.
    2. Criminal law <&wkey;404(4).
    In murder prosecution, rocks and wire weighting body in pool of water held properly admitted in evidence.
    3. Criminal law <&wkey;478(l).
    Undertaker of 19 years’ experience held properly qualified as expert to testify that wounds crushed deceased’s skull and in his opinion caused death.
    4. Criminal law <&wkey;l 120(4).
    Bill of exceptions, objecting to admission of certain portions of written statement, purported made by defendant, but setting out none of admitted testimony, held to present nothing for review.
    5. Criminal law <§=530.
    Offering in evidence part of written confession held not erroneous.
    6. Criminal law <&wkey;l09l(4).
    Bill of exceptions to admission of only part of written confession containing no explanation in support of statement of objections held im-sufiicient.
    7. Homicide <§=166(10) — Rejected testimony that witness, on day before homicide, saw defendant and another in Ford coupé, held not rebuttal of theory that defendant killed deceased to get his car.
    Rejected testimony in murder prosecution, 'the witness had seen defendant and some other in Ford coupé on day before homicide, held of no probative force as rebutting state’s theory that defendant killed deceased to get his ear.
    8. Homicide <&wkey;!66(IO),
    Testimony as to statements of defendant before homicide as to Ford coupé held properly rejected, in absence of showing of connection between such coupé and one which state contended defendant killed deceased for possession of.
    9. Criminal lav/ <§=665 (4).
    Testimony of witness who had been in courtroom during trial, in violation of rule invoked, held properly refused.
    10. Criminal law <&wkey;537.
    After defendant confessed striking deceased with iron, stating he then threw it in water, sheriff was properly permitted to testify as to iron found in car in which defendant and deceased rode to scene of homicide.
    'll. Criminal law <&wkey;l056(I), 1091(9).
    Exception to charge must call attention to particular part of record, or bill of exceptions must set out facts from which soundness of exception may be determined.
    On Motion for Rehearing.
    12. Criminal law <&wkey;>595(6).
    Where defendant’s confession raised issue of self-defense, application for continuance, showing diligence, for absent witnesses, material on plea of self-defense, should have been granted.
    
      13. Criminal law <5&wkey;78l(5).
    Failure to submit question as to voluntary character of confession, with instructions that, if confession was not freely and voluntarily made, it should not be considered, held error.
    Appeal from District Court, De Witt County; JohnM. Green, Judge.
    George Smith was convicted of murder, and he appeals.
    Reversed, and remanded on rehearing.
    H. G. Nami, of Cuero, for appellant.'
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesheclr, for the State.
   LATTIMORE, J.

Conviction in district court of De Witt county of murder; punishment fixed at death.

Appellant sought a continuance. By the absent witnesses he expected to prove facts tending to show that deceased was a man of violent and dangerous character, and that they jointly owned a Ford coupé. Before we would hold erroneous the refusal of a continuance, the materiality of the absent testimony would have to be shown. No such showing is here made. Appellant did not take the stand and testify. No one was present at the homicide save appellant and deceased. The testimony before us raises no issues to which the'absent testimony could be deemed pertinent, even if diligence was shown.

The body of deceased was found the day after the homicide. It was weighted down by rocks wired to the body, and was found in a deep pool of water. The rocks and wire were admitted in evidence. We do not regard the complaint of this as well founded. Simpson v. State, 97 Tex. Cr. R. 57, 263 S. W. 273.

An undertaker of 19 years’ experience described the wounds which he said crushed the skull of deceased and in his opinion caused death. Objection that the witness was not an expert is not deemed tenable.

Bill of exceptions No. 5 was reserved to the admission in evidence of certain portions of a written statement purporting to have been made by appellant, but the bill sets out none of the admitted testimony, and no part of such written statement- so objected to. Such a bill brings nothing before us for review.

The state offered in evidence a part only of the written confession made by appellant. This was objected to on the ground that the state must either offer all or else no part of such statement. The objection is not well founded. Giles v. State, 43 Tex. Cr. R. 561, 67 S. W. 411; Davis v. State, 85 Tex. Cr. R. 15, 209 S. W. 749. This was complained of in bill of exceptions No. 6, wherein also appears the further objection to said testimony, for the reason that it was “not procured under the circumstances and conditions that are required by law in such cases.” There is nothing in the bill explaining or supporting this statement of objections, and the confession which is made a part of the bill shows to have been taken in exact accordance with the statutory provisions. In this connection we further wish to state that appellant was allowed to, and did, introduce all of tlíe remainder of the confession.

We fail to see the force of what is stated in bill of exceptions No. 7 to be the rejected testimony of James Jones, to the effect that the day before the homicide appellant and some man, who was a stranger to Jones, were in a Ford coupé, and appellant offered to sell the spare tire on the car in order to get money to buy gasoline. We perceive little or no probative force in such testimony as rebutting the state’s theory that appellant killed deceased to get his car.

Bill of exceptions No. 9 complains of the rejection of the testimony of one Williams to statements purporting to have been made by appellant some weeks before the homicide with reference to a Ford coupé. No connection is shown in the bill between the eoupé then referred to by appellant and the one which figured in this case. No error is shown.

The court’s action in refusing to permit the introduction of the testimony of a witness who had been in the courtroom during the trial, in violation of the rule invoked, seems no abuse of discretion. The testimony of the witness in question, as set out in the bill, seems of no importance.

Appellant confessed he struck deceased in the head with a piece of iron, which he further said he threw into the water. The state’s testimony' showed that search was made in the pool of water for such bar of iron, but it was not found. The sheriff was allowed to testify that he found a bar of iron or steel in the back of the car in which the two men rode to the scene of the homicide and which appellant drove away. We deem the admission of this testimony not erroneous.

Appellant’s fourth exception to the court’s charge is as follows:

“Because the court has failed to charge whether the confession of the defendant was made freely, and voluntarily, as contemplated by the statutes and laws of this state, and in this connection defendant submits his special charge No. 3.”

Appellants special charge No. 3, referred to above, is as follows:

“At the request of the defendant, the following special charge is submitted to you by this court as a part of the law of the case, and in the consideration of the same you will regard the same as the law and as if given you in the main charge by the court:
“The state has introduced in evidence the • confession of defendant, and relies upon the said confession to establish the guilt of the said defendant. In this connection you are charged that under our law no man can be required to testify against himself, and no statement made by him in writing or orally to an officer can be used in evidence against him after his arrest and while he is in custody, unless the same be made willingly and voluntarily by him, and without being under circumstances such as under threats, duress, promises and force made by any or all of the officers or any other person in whose custody he may have been since his arrest, and there not having been a cessation of such influence at the time he made such statement, and, unless you are satisfied beyond a reasonable doubt that the defendant, when he made this statement or confession, was not laboring under or relying on 'the promises of Mr. G. A. Lenz, the sheriff, if any promises were made him, then such statement or confession should not be considered by you for any purpose. You are further instructed in connection herewith that you are to take into consideration the relative positions of the parties, the station in life and circumstances of the defendant, and the long-standing acquaintanceship and friendship of Mr. G. A. Lenz, the sheriff, and the defendant, in arriving at your decision or conclusion as to whether the confession herein was made in compliance with the laws of this state, and, unless you so find, then you will not consider the said confession for any purpose in this case.”

That this special charge is not correct appears from an inspection of same. The exception to the charge above quoted is In such condition that same calls attention to no particular part of the record, and there is no bill of exceptions presenting this complaint in which any facts are set out from which the soundness of the exception may 'he determined. However, in view of the verdict of the jury, we have considered the entire record, and find nothing thefein leading us to conclude that, if the exception had been in proper form, the failure of the court to give the charge indicated would have injuriously affected the rights of this appellant.

We have tried to give this record the care which it demands, in view of the infliction of the extreme penalty of the law upon appellant. The record reveals that the two men left on the morning of the homicide in a Eord coupé belonging to deceased, and later that day appellant was seen with the car alone, and informed parties who .gave testimony .to that effect that he had carried deceased to a certain town where the latter had taken the train for West Texas. The next day the body of deceased was found naked and with heavy rocks’ wired to it, sunk in a deep pool of water. Blood and brains were oozing from the crushed skull of the body. After the body was found, appellant repeated his claim that he had taken deceased to where the latter had caught the train. Some days after his arrest appellant made a complete confession, admitting that he had killed deceased and sunk his body where it was found. In the confession appellant told an unbelievable story of conduct on the part of deceased which led to the killing. The learned trial judge seems to have submitted fully, and in a manner acceptable to appellant, the law relating to all the issues in the case properly raised by appellant’s testimony.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

'In our original consideration of this case we overlooked the fact that by the confession of the appellant, which was put in evidence by the state, the issue of self-defense was raised. Said issue being in the case, the application for continuance showing diligeneS for the absent witness as material on the plea of self-defense should have been granted.

We have also concluded, upon a careful review of the facts, that the learned trial judge should have submitted to the jury the question as to the voluntary character of the confession, with appropriate instructions to them that, if they believed said confession was not freely and voluntarily made, same should not be considered.

Appellant’s motion for rehearing is granted, the affirmance is set aside, and the judgment is now reversed, and the cause remanded. 
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