
    RUFFIN v. STATE.
    (No. 10839.)
    Court of Criminal Appeals of Texas.
    June 1, 1927.
    Rehearing Denied Oct. 12, 1927.
    3.Criminal law <&wkey;>596(() — Continuance to procure absent witness’ testimony as to deceased’s statement, testified to without dispute by other witnesses, held properly denied.
    Refusal of continuance for absence of witness, expected to testify that deceased, while being removed to his home after shooting, said he would have killed defendant had it not been for deceased’s wife and sister, held not error, where such statement was substantially' testified to without dispute by other witnesses.
    2. Criminal law &wkey;>596(l) — Refusal of continuance to procure absent witness’ testimony that deceased said he would have killed defendant but for deceased’s wife and sister held not prejudicial error, in view of their testimony.
    Refusal of continuance for absence of witness, expected to testify that deceased said, shortly after shooting, that he would have killed defendant had it not been for deceased’s wife and sister, held not injurious to defendant, in view of their testimony as to deceased’s threatening acts, words, and conduct before leaving his home for scene of shooting, their remonstrance and interference with his purpose, and their persuasion to change plan.
    3. Criminal law <&wkey;596(I) — Refusal of continuance for character witnesses’ absence held not abuse of discretion, in view 'of other witnesses’ undisputed testimony.
    Refusal of defendant’s application for continuance because of absence of character witnesses held not abuse of discretion, in view of undisputed testimony on such issue by other witnesses.
    4. Criminal law <&wkey;>829(l) — Refusal of charges, covered by and no more pertinent and favorable to defendant than instructions given, held not error.
    Refusal of special charges, fully covered by main charge and no more pertinent and favorable, to defendant than instructions given, held not error.
    5. Homicide <&wkey;250 — Evidence held to support conviction of murder.
    Evidence held sufficient to support conviction of murder.
    6. Homicide <§=^347 — Judgment sentencing, defendant to 10 years’ confinement in penitentiary for murder will be reformed in accordance with indeterminate sentence law.
    Judgment sentencing defendant to ten years’ confinement in penitentiary for murder will be reformed in accordance with the indeterminate sentence law to read not less than 5 nor more than 10 years in the penitentiary.
    On Motion for Rehearing.
    7. Criminal law <&wkey;917(2) — Refusal of new trial for denial of continuance to procure absent witness’ testimony as to deceased’s statement, testified to by other witnesses without contradiction, held not abuse of discretion (Code Cr. Proc. 1925, art. 543, subd. 6).
    Refusal of new trial for denial of continuance to procure testimony of absent witness that deceased said after shooting that he would have killed defendant had it not been for deceased’s wife and sister held not abuse of court’s discretion, under Code Or. Proc. 1925, art. 543 (608), subd. 6, in view of uncontra-dieted testimony of other witnesses as to such declaration.
    8. Homicide <&wkey;300( 14)— Charge that deceased’s threats would not justify killing, unless he manifested intent to execute threat, heid not erroneous as not affirmatively submitting theory of apparent danger (Pen. Code 1925, art. 1258).
    Charge that one accused of homicide may introduce evidence of threats by deceased, but that “same shall not be regarded as * * * justification for the killing unless” deceased “by some act then done manifested an intention to execute the threat,” held not erroneous, under Pen. Code 1925, art. 1258 (1143), as not affirmatively submitting theory of danger as it appeared to defendant at time.
    Appeal from Uistriet Court, Marion County ; R. T. Wilkinson, Judge.
    John Ruffin was convicted of murder, and he appeals.
    Judgment reformed,, and affirmed as reformed.
    P. G. Henderson and J. H. Benefield, both of Jefferson, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction of murder; punishment, ten years in the penitentiary.

Appellant and deceased were brothers, both married, and living not far apart on their father’s farm. We gather from the record that deceased had not finished gathering his crop when appellant turned a cow into the field in which both had farmed that year. Deceased came to appellant’s house; they had hot words, following which deceased returned hastily to his home nearby, according to the testimony of appellant and his witness Jones, threatening to get his gun and come back and kill appellant. Jones and appellant testified they saw deceased get down and go into his house and come out and start pretty fast back toward appellant’s house, but the wife and sister of deceased caught him, and witnesses said they heard him tell them to turn him loose, that he was going to kill that s-of a b-, and that if they did not let him do it then he would next week. They further said the woman carried deceased back into his house, and presently he came out and came on down to appellant’s house, the women coming with him holding to the bit of the bridle on the animal he was riding. As to what occurred at the home of appellant when 'deceased got there, there is sharp conflict, the two women swearing that appellant shot deceased in the back with buckshot and that deceased was doing nothing at the time. Appellant and Jones swore that when deceased rode up appellant asked him, “Well, Early, have you come back to kill me?” to which deceased,replied that he was damn right, that he was going to kill appellant, and that at this juncture deceased put his hand in his bosom, whereupon appellant raised up his gun, firing once in the air but a second shot into the body of deceased, from which shooting deceased died that night. It is admitted that deceased had no weapon, and the appellant based his right to kill on apparent danger as the matter appeared to him at the time. Jim Jones, Sr., swore for the defense that he was about a quarter of a mile from the place of the shooting, and that his son David, who was an eyewitness, came over and told him what had been done. He went to the place and helped carry deceased to his home. On the way deceased told him that appellant “got me down, but if it hadn’t been for Eldora and Georgia I would have got him.” David Jones testified that deceased said to him: “G-d d-n him, he got me, but I am not afraid of him yet; * * * if it hadn’t been for my wife I would have got him.” No witness for either side testified to any movement, word, act, or demonstration on the part of the wife and sister of deceased at the place of the killing which could be construed as having hindered or prevented deceased from making any attack on appellant which he might have then purposed.

In this condition of the record we are called on to say whether the refusal of a continuance because of the absence of Jim Jones, Jr., was error. By him appellant expected to prove that while assisting in the’ removal of deceased to his home after the shooting, the latter said if it had not been for his wife and sister he would have killed appellant at the time. It is plain that this is substantially what was testified to on the trial by Jim Jones, Sr., and David Jones, and the making of this statement is not disputed. It is further clear that deceased did not mean by this statement to say that any movement or attempt of his at the scene of the killing was frustrated or prevented by his wife and sister, but that he referred to what took place at his house before coming to the scene of the shooting, it being shown by witnesses for both the state and the defendant that the wife and his sister at the house remonstrated with him and insisted that he not go down to kill appellant and that he have no further trouble with him. From no point of view can we see injury to appellant by reason of the absence of Jim Jones, Jr. The wife and sister of deceased testified to the threatening acts, words and conduct of deceased at his home, to their remonstrance and interference with his purpose to immediately return and have trouble with appellant, and to their persuasion that he change his plan. The application for continuance was also made on account of the absence of other witnesses, but we observe that they were witnesses to character, and that witnesses who testified on the trial amply supplied testimony on said issue without dispute. We deem the refusal of the application for continuance no abuse of the discretion of the trial court. Duncan v. State, 30 Tex. App. 1, 16 S. W. 753; Parks v. State, 35 Tex. Cr. R. 379, 33 S. W. 872; Wright v. State, 37 Tex. Cr. R. 631, 40 S. W. 491.

There are two bills of exception complaining of the refusal of special charges, hut examination of the main charge makes apparent the fact that the court fully covered the legal issues involved in said special charges, and that the instructions given were as pertinent and as favorable to appellant as appears in the special charges referred to.

The evidence seems ample to support the verdict and judgment. Our attention is called to the fact that the judgment and sentence ignore the provisions of the indeterminate sentence law, and that appellant is adjudged guilty and his punishment fixed both in the judgment and sentence at ten years’ confinement in the penitentiary. The judgment and sentence will be reformed so as to adjudge and sentence appellant to confinement' for a period of not less than five nor more than ten years in the penitentiary, and, as reformed, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

A review of the record in the light of the motion for rehearing leads to the conclusion that the denial of a new trial sought upon the ground that there was error in overruling the motion for a continuance does not present error requiring or warranting a reversal of the judgment. The facts upon which the appellant’s contention is based appear in the original opinion. The evidence was definite and uneontro-verted that while the deceased was at his home, he expressed the intention and desire to kill the appellant, but was caused to desist through the importunities and activities of his wife and sister; that he subsequently came unarmed to the home of the appellant and was there killed; that after he was shot he said in the presence of three witnesses that if it had not been for his wife he would have killed the appellant. Two of these witnesses were present upon the trial and testified to the declaration mentioned by the deceased. The third witness to the same fact was absent, and it was for the lack of his testimony that the. motion to continue was sought. That the deceased made the declaration imputed to him by the two witnesses mentioned was contradicted by none. The trial court, in the light of the verdict and th"e entire record, refused to grant a new trial. The statutory law is embraced in subdivision 6 of article 543, C. C. P. 1925 (old Code, art. 608), in which the declaration is made that a continuance is not a matter of right, but is within the discretion of the trial court, to be reviewed on motion for new trial, in the light of the developments on the trial. In times too numerous to recount the provisions of the statute mentioned have been interpreted by this court, as illustrated by the annotations under subdivision 6, art. 608, Vernon’s Tex. Crim. stat. 1916, vol. 2, and Vernon’s Tex. Crim. C. C. P., 1925, art. 543. From one of the cases we quote:

“The continuance is not a matter of absolute right, but in passing upon it the trial judge exercises a sound judicial discretion, subject to review, and its abuse when prejudicial often results in reversal. Branch’s.Ann. P. C. § 306, and cases there cited. A reversal will take place, however, generally speaking, in those cases only where from the evidence adduced upon the trial, the appellate court is impressed with the conviction that it is reasonably probable that if the absent witness would have been before the jury a verdict more favorable to the accused would have resulted.” Keel v. State, 84 Tex. Cr. R. 47, 204 S. W. 866.

Applying this construction to the facts at hand, it seems clear that the record would not justify this court in declaring that in refusing a new trial the learned trial judge abused the discretion which, under the statute, he was privileged to exert. Many analogous cases may be found. Among them are Bennett v. State, 95 Tex. Cr. R. 70, 252 S. W. 790; Hughes v. State, 95 Tex. Cr. R. 65, 252 S. W. 774.

In paragraph 10 of the charge the court instructed the jury upon the law of self-defense, embracing both real and apparent danger, including the subject of threats.

In paragraph 11 is embraced a separate charge touching the law of threats as contained in article 1258, P. O. 1925 (old Code, art. 1143), wherein it is said in substance that one charged with homicide may introduce evidence of threats made by the deceased, “but the same shall not be regardéd as affording a justification for the killing unless it be shown that at the time of the homicide the person killed by some act then done manifested an intention to execute the threat so made.” The paragraph appears quite comprehensive, conveying to the jury the information that the accused was privileged to act where the intention to execute the threat was manifested by either act or words or both. The only exception to this charge was that in which it was asserted that it was not a submission in an affirmative manner the appellant’s defensive theory. We think the criticism is not sound. The charge clearly submits in an affirmative manner the defensive theory mentioned and in some respects gives tibe statute a scope more favorable to the accused than the law demands. It embraces the same idea as that contained in the special charge requested by the accused, save. that it was broader and more favorable to him.

The motion for rehearing is overruled. 
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