
    BLALOCK v. STATE.
    (No. 3541.)
    (Court of Criminal Appeals of Texas.
    May 12, 1915.)
    1. Criminal Law <@=614 — Continuance — Denial — Lack of Diligence.
    Accused’s second application for a continuance because of the absence of a witness, who had been subpoenaed and attended at least one term of court, and who subsequently removed from the state, was properly overruled, where no proper diligence to secure his testimony was shown.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1312-1314; Dec. Dig. <S=
    2. Criminal Law <@=3419, 420 — Admissibility oe Evidence — Hearsay.
    On a trial for homicide, accused claimed that deceased attacked him with a knife, and that he struck deceased in self-defense. The state offered evidence that this claim was a fabrication hatched out in the office of accused’s attorneys on the morning of the trial. Meld, that evidence that it was a matter of common talk and rumor in the neighborhood where the difficulty occurred that a knife was found the next morning at the place where it occurred was properly excluded as hearsay.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. <@= 419, 420.]
    3. Criminal Law <@=507 — Evidence — Corroboration op Accomplice.
    Accused, deceased, and two other persons, who were present when accused struck deceased a blow from which he subsequently died, agreed to say nothing about the matter, so that the officers would not learn of it. At the time none of them knew or believed that deceased was fatally injured. Meld, that one of such persons was not an “accomplice,” and, on the trial of accused for homicide, corroboration of his testimony was not required.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1097, 1264; Dec. Dig. <@= 507.]
    4. Homicide <@=299 — Questions por Jury— Self-Defense in Preventing Theft.
    Accused and deceased gambled at cards in the nighttime, and when the game ceased two $10 bills lying between them were claimed by both. Deceased started away with them, and accused demanded them, and, when deceased refused to give them to him, struck him a blow with a stick shown to be a deadly _ weapon, from which he died. Held,, that evidence of these facts did not require the submission of the question of justification in preventing a theft at night, under Pen. Code 1911, art. 1105, providing that homicide is permitted when inflicted for the purpose of preventing such a theft.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 013; D’ee. Dig. @^>299.]
    5. Criminal Law <§=»1056 — Appeal—Reservation of Grounds of Review — Exceptions to Charge.
    Under the present statute, the court’s failure, on a trial for homicide, to submit the issue of justification in preventing a theft at night was not reversible error, where no exception was taken to the charge at the trial.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 26GS, 2670; Dec. Dig. <&=> 1056.]
    Appeal from District Court, Upshur County ; W. R. Heath, Judge.
    Raymond Blalock was convicted of manslaughter, and he appeals.
    Affirmed.
    Warren & Briggs, of Gilmer, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of manslaughter and the lowest punishment assessed.

Appellant and Pete Jordan gambled at cards several hours and until about or early in the night. Deceased, Bud Eerguson, staked Jordan, and he and appellant’s brother, Paul, were present while they gambled. The gambling was stopped by mutual consent. Lying between the parties, when the game ceased, were two $10 bills. Eerguson then picked these up, claiming they were his, and walked off with them. While this was a disputed point, the evidence was amply sufficient to show that these bills belonged to Eerguson. Appellant, however, claimed them, and demanded that Eerguson deliver them to him. Ferguson refused. Appellant followed him off some 30 steps distant, and according to the state’s theory, and there was ample evidence to sustain it, because Eerguson refused to deliver to him the two $10 bills, appellant picked up a stick of considerable size, which was shown to be a deadly weapon, struck Eerguson across the side of the head with it, knocked him down, picked up the two $10 bills, and no further fight ensued. Appellant claimed that, at the time he struck Ferguson, Eerguson had his knife out and attacked him therewith. The state disputed this, and, while there was evidence pro and con, it was amply sufficient to show that deceased had no knife and made no attack therewith upon appellant; that this testimony was recently fabricated just prior to this trial. Eerguson could not get up after he was felled by appellant with the stick. Jordan and appellant’s brother, Paul, went to him and helped him up. All of the parties, including deceased, did not then know, and it seems did not believe, that deceased was fatally injured. At appellant’s instance, deceased, instead of going home, went to appellant’s home to spend the night. Pie could not walk from where he was felled to appellant’s without the assistance of others, and said Jordan and Paul assisted him the whole of the way. Even after reaching appellant’s and going to bed, it seems none of the parties at that time thought deceased’s injuries would result fatally. However, deceased rapidly grew worse, and died from the effects of the licit within a few hours. Just before or just after deceased died, appellant fled, attempted to escape arrest, and was not found and arrested until some days later. The officers first arrested Jordan and Paul Blalock, but, as soon as an investigation was made, both of them were released and discharged. Appellant was indicted in January, 1914. That term and two others intervened before appellant was tried in January, 1915.

Appellant claims the court erred in refusing him a continuance for the absence of the witness John Deshazo. This witness was subpoenaed by both the state and appellant at the January term, 1914, and it seems attended that and at least one other term of court and then removed to Oklahoma. When he removed there is not shown. In our opinion the court correctly overruled appellant’s motion for continuance, because no proper diligence to secure the testimony of said witness was shown. Giles v. State, 148 S. W. 317. Appellant claims that this was his first, but the record shows mat it was his second, application for a continuance. Rogers v. State, 71 Tex. Cr. R. 149, 159 S. W. 40.

The state introduced evidence which tended strongly to show that appellant’s claim on this trial that deceased attacked him with a knife, and that he struck him with a stick in self-defense, was a recent fabrication and hatched out in appellant’s attorney’s office the morning the case went to trial. On this issue appellant has several bills of exceptions complaining that the court refused to permit him to prove by several witnesses that it was a matter of common talk and rumor in the neighborhood where the difficulty occurred that a knife was found the next morning after the homicide at the place where the altercation occurred. The court correctly refused to permit such testimony. It was hearsay, pure and simple. Of course, testimony by any witness who knew it, that a knife was found the next morning at the place where the homicide occurred, which was deceased’s knife, would have been admissible, but not said hearsay testimony.

Appellant also contends that the court erred in refusing to give his special charge submitting to tbe jury the question of whether or not said state’s witness Pete Jordan was an accomplice, and that his testimony had to be corroborated, in that the evidence showed or tended to show that he was an accessory. The basis for this in the evidence was that, after the difficulty between appellant and deceased, the four persons, who were present during the gambling and when the difficulty occurred and the lick was struck, afterwards agreed, among themselves, they Would say nothing about it, so that the officers would get hold of it. As expressed by appellant’s brother and witness, Paul Bla-lock:

“After he [deceased] got up it was discussed between all of us as to where he should go, and he, at Raymond’s suggestion, agreed that he would go home with Raymond and stay all night, and we would say nothing about it, so that the officers would get hold of it.”

This and no other evidence in the record would show or tend to show that said witness was an accessory. P. C. art. 86; Hargrove v. State, 63 Tex. Cr. R. 143, 140 S. W. 234; Schaekey v. State, 41 Tex. Cr. R. 255, 53 S. W. 877. Many other cases might be cited on this point, but we deem it unnecessary. Our decision herein in no way conflicts with Harrison v. State, 69 Tex. Cr. R. 302, 153 S. W. 139, wherein we discussed this question and expressly disapproved of some general statements in several cases therein mentioned.

Appellant made no exception to the court’s charge at the time of the trial on the point we will now discuss. After the trial, in his motion for new trial, and now, he claims that the court erred in not submitting a charge justifying the homicide on the ground that it was committed for the purpose of preventing theft at night under article 1105, P. C. He asked no charge on the subject. In our opinion the facts called for no such charge. Even if they had, under the statute as it now is, as has many times been decided by this court, the court’s failure to submit such issue would not present reversible error. An accused cannot now, as formerly, wait till after the trial to have such contentions sustained.

The questions we have discussed and decided are all that are presented in appellant’s brief. Some other questions, however, are raised in the record. None of them present any error. It is unnecessary for us to state or discuss them.

The judgment will be affirmed. 
      <@=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      <gn=jFor other cases see same topic and KEY-NUMBER in. all Key-Numbered Digests and Indexes
     