HERDERS OR, Judge.
Appellant was convicted of murder in the second degree, and his punishment assessed at ten years confinement in the penitentiary.
Appellant made a motion to continue the ease on account of the absence of James Dyer, for whom a subpoena had previously been issued and served. As to the failure of said witness to appear, the affidavit shows he was not able to attend on account of being sick; that he lived in Franklin County, twelve miles north of the county-seat. Reference is made to the affidavit of Dr. Davis. This affidavit shows that affiant is a regular practicing physician in the county, and is acquainted with the witness James Dyer, and says he knows said witness is confined to his bed by a severe sickness, and he is at his home about twelve milee north of Mount Vernon, Franklin County, and is unable on account of such serious sickness to attend court' at Mount Vernon during said week. The court explains this bill as to the diligence used, as follows: “Said Dyer is a first cousin of the defendant; and Dr. Davis, the attending physician is a partisan in behalf of the defendant; that said physician gave a certificate that Jim Dyer and his wife, Mrs. W. 0. Rogers and Will Pike were all sick and unable to attend as witnesses in the case; that all said witnesses attended court and were not sick; that Jim Dyer, while a little sick, was able to attend and testify, if he had been wanted; that the next day after the trial, Jim Dyer rode four miles to make affidavit before justice of the peace, to be attached to the motion for new trial. His affidavit was handed to the attorneys for the defendant, and they declined to attach said affidavit to their motion for new trial. In the opinion of the judge, defendant preferred the point overruling the application for continuance, to the evidence of the witness. His evidence could have been had if defendant‘had wanted it. When the motion for new trial was acted on, defendant’s attorneys had
Jim Dyer’s affidavit, and declined to annex it to their motion.” Appellant and his attorneys reply to this explanation of the court, to the effect: that said explanation was made to the bill of exceptions "ex parte” by the judge, and without any accompanying affidavits to support the same, and was made thereto without the knowledge and consent of appellant, and after the adjournment of the court, when they had no opportunity to controvert the same; that if they had been afforded an opportunity they would have shown the facts to be different than as stated by the judge. It is further shown in the affidavit that instead of the witness being able to ride some four miles and make the affidavit on the day after the trial, it was four days thereafter before he rode to the justice of the peace in a buggy and made the affidavit. Appellant’s attorneys further explain that they had the affidavit of said witness at the time the motion for new trial was acted on, but they did not see fit to file the same with the application; but afforded State’s counsel an opportunity to inspect the affidavit, which was read to the court. They further complain that the ex parte statement of the judge was calculated to reflect on their professional integrity, and they should have been afforded an opportunity to meet the allegations therein. While it is competent for a judge to make proper explanations to bills of exceptions, where these matters do not appear in the record but are ascertained by the judge from extraneous sources, in connection therewith, he should file affidavits supporting his statement, and full opportunity should then be afforded appellant to controvert the sources of his information. Even if the fact existed within the knowledge of the court, he could not state the same without accompanying it by his affidavit, unless such fact appeared some way of record. Here, the judge appears to have certified that the witness could not have been sick as stated in the application, which he appears to have derived from an inference that this same witness was able on the next day after the trial to ride four miles and make an affidavit. This deduction of the court might be true, and yet it might be true that at the time the affidavit for continuance was made, the witness was not able to attend court. But when we find from the date of the affidavit itself that it was made four days after the application for continuance was presented and acted on, the basis of the inference of the judge appears to have been in a measure destroyed, even if he were authorized to draw the deduction assumed by him in this case. We do not believe the judge was warranted in his inference that the affidavit made for the continuance was false, much less was he authorized to infer that the attorneys could have had the evidence present, in court if they had wanted it. It occurs to us that the diligence used to procure this testimony was adequate. Richardson v. State, 28 Texas Crim. App., 216. Was the testimony of the absent witness material ? It was shown in the application that one Ottinger, who was a State’s witness, would testify that on a certain occasion, a short while after the homicide, he had a conversation with defendant, in which defendant stated to him, that he killed deceased because he wanted to, and would do it again if it
was to do over; and cursed him and said he killed him because he had been telling lies on him. This witness Ottinger was present at the trial and did testify as alleged, and this was a most material fact in favor of the State, suggesting malice on the part of the defendant in the killing. The time when this occurred is not definitely stated by this witness, nor is the time definitely fixed by appellant’s absent witness. But both witnesses concur that there was but the one conversation at the particular place when this statement should have been made. So, we take it, that the occasion is sufficiently definite, and the only point of difference between the State’s witness Ottinger and appellant’s absent witness is, that Ottinger says the conversation occurred with reference to the homicide before the witness Jim Dyer came up, while the application shows that Jim Dyer was present all the time during the interview between appellant and the witness Ottinger. The application shows that this absent witness Jim Dyer would testify that he was present during all the time, and that no such statement was made as that testified to by the State’s witness Ottinger. As previously stated, this was a most material fact, indicating malice on the part of appellant, and appellant certainly had the right to rebut this by any legal testimony he could adduce. The testimony of the absent witness, though of a negative character, effectually contradicted the evidence of the State’s witness on this point. Appellant had the right to avail himself of the evidence of this witness, in order that the jury might pass on the truthfulnes of the testimony of the witness Ottinger against him. Wallace v. State, 81 S. W. Rep. 966, 10 Texas Ct. Rep., 915; Phipps v. State, 34 Texas Crim. Rep., 560; Donohue v. State, 28 Texas Crim. App. 12; Hardin v. State, 49 S. W. Rep., 607.
Appellant also complains of the action of the court in permitting the witness Holbrook to testify as to an impression produced on his mind by the testimony of Jesse Creasy at the examining trial.
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HERDERS OR, Judge.
Appellant was convicted of murder in the second degree, and his punishment assessed at ten years confinement in the penitentiary.
Appellant made a motion to continue the ease on account of the absence of James Dyer, for whom a subpoena had previously been issued and served. As to the failure of said witness to appear, the affidavit shows he was not able to attend on account of being sick; that he lived in Franklin County, twelve miles north of the county-seat. Reference is made to the affidavit of Dr. Davis. This affidavit shows that affiant is a regular practicing physician in the county, and is acquainted with the witness James Dyer, and says he knows said witness is confined to his bed by a severe sickness, and he is at his home about twelve milee north of Mount Vernon, Franklin County, and is unable on account of such serious sickness to attend court' at Mount Vernon during said week. The court explains this bill as to the diligence used, as follows: “Said Dyer is a first cousin of the defendant; and Dr. Davis, the attending physician is a partisan in behalf of the defendant; that said physician gave a certificate that Jim Dyer and his wife, Mrs. W. 0. Rogers and Will Pike were all sick and unable to attend as witnesses in the case; that all said witnesses attended court and were not sick; that Jim Dyer, while a little sick, was able to attend and testify, if he had been wanted; that the next day after the trial, Jim Dyer rode four miles to make affidavit before justice of the peace, to be attached to the motion for new trial. His affidavit was handed to the attorneys for the defendant, and they declined to attach said affidavit to their motion for new trial. In the opinion of the judge, defendant preferred the point overruling the application for continuance, to the evidence of the witness. His evidence could have been had if defendant‘had wanted it. When the motion for new trial was acted on, defendant’s attorneys had
Jim Dyer’s affidavit, and declined to annex it to their motion.” Appellant and his attorneys reply to this explanation of the court, to the effect: that said explanation was made to the bill of exceptions "ex parte” by the judge, and without any accompanying affidavits to support the same, and was made thereto without the knowledge and consent of appellant, and after the adjournment of the court, when they had no opportunity to controvert the same; that if they had been afforded an opportunity they would have shown the facts to be different than as stated by the judge. It is further shown in the affidavit that instead of the witness being able to ride some four miles and make the affidavit on the day after the trial, it was four days thereafter before he rode to the justice of the peace in a buggy and made the affidavit. Appellant’s attorneys further explain that they had the affidavit of said witness at the time the motion for new trial was acted on, but they did not see fit to file the same with the application; but afforded State’s counsel an opportunity to inspect the affidavit, which was read to the court. They further complain that the ex parte statement of the judge was calculated to reflect on their professional integrity, and they should have been afforded an opportunity to meet the allegations therein. While it is competent for a judge to make proper explanations to bills of exceptions, where these matters do not appear in the record but are ascertained by the judge from extraneous sources, in connection therewith, he should file affidavits supporting his statement, and full opportunity should then be afforded appellant to controvert the sources of his information. Even if the fact existed within the knowledge of the court, he could not state the same without accompanying it by his affidavit, unless such fact appeared some way of record. Here, the judge appears to have certified that the witness could not have been sick as stated in the application, which he appears to have derived from an inference that this same witness was able on the next day after the trial to ride four miles and make an affidavit. This deduction of the court might be true, and yet it might be true that at the time the affidavit for continuance was made, the witness was not able to attend court. But when we find from the date of the affidavit itself that it was made four days after the application for continuance was presented and acted on, the basis of the inference of the judge appears to have been in a measure destroyed, even if he were authorized to draw the deduction assumed by him in this case. We do not believe the judge was warranted in his inference that the affidavit made for the continuance was false, much less was he authorized to infer that the attorneys could have had the evidence present, in court if they had wanted it. It occurs to us that the diligence used to procure this testimony was adequate. Richardson v. State, 28 Texas Crim. App., 216. Was the testimony of the absent witness material ? It was shown in the application that one Ottinger, who was a State’s witness, would testify that on a certain occasion, a short while after the homicide, he had a conversation with defendant, in which defendant stated to him, that he killed deceased because he wanted to, and would do it again if it
was to do over; and cursed him and said he killed him because he had been telling lies on him. This witness Ottinger was present at the trial and did testify as alleged, and this was a most material fact in favor of the State, suggesting malice on the part of the defendant in the killing. The time when this occurred is not definitely stated by this witness, nor is the time definitely fixed by appellant’s absent witness. But both witnesses concur that there was but the one conversation at the particular place when this statement should have been made. So, we take it, that the occasion is sufficiently definite, and the only point of difference between the State’s witness Ottinger and appellant’s absent witness is, that Ottinger says the conversation occurred with reference to the homicide before the witness Jim Dyer came up, while the application shows that Jim Dyer was present all the time during the interview between appellant and the witness Ottinger. The application shows that this absent witness Jim Dyer would testify that he was present during all the time, and that no such statement was made as that testified to by the State’s witness Ottinger. As previously stated, this was a most material fact, indicating malice on the part of appellant, and appellant certainly had the right to rebut this by any legal testimony he could adduce. The testimony of the absent witness, though of a negative character, effectually contradicted the evidence of the State’s witness on this point. Appellant had the right to avail himself of the evidence of this witness, in order that the jury might pass on the truthfulnes of the testimony of the witness Ottinger against him. Wallace v. State, 81 S. W. Rep. 966, 10 Texas Ct. Rep., 915; Phipps v. State, 34 Texas Crim. Rep., 560; Donohue v. State, 28 Texas Crim. App. 12; Hardin v. State, 49 S. W. Rep., 607.
Appellant also complains of the action of the court in permitting the witness Holbrook to testify as to an impression produced on his mind by the testimony of Jesse Creasy at the examining trial. It seems, that Jesse Creasy was introduced as a witness on this trial by the State, and on the cross-examination appellant drew out of him that he saw an axe at the time the homicide was committed; that he heard an expression from appellant, immediately after the homicide, that he was sorry he had it to do but deceased would have killed him with that axe if he had not done it. This evidence, it seems, did not appear from this witness at the examining trial, but was drawn out by appellant, for the first time, on the cross-examination of said witness in this trial. The State used the examining trial testimony in some way to contradict witness Creasy; and in that connection used the justice of the peace Holbrook, who testified that Creasy gave no such testimony on the examining trial, and that he knew he did not, because, as he stated, "I remember very distinctly about that part of his testimony, and it made an impression on my mind, because it was so unreasonable.” This portion of the witness’ testimony was excepted to by appellant on the ground that it called for the opinion of the witness, and that it was not- competent for him to give the reasons why he remembered it. The court has appended an
explanation to this bill, but it does not appear to afford any reason for the admission of the statement. It is sometimes permissible for a witness to refresh his memory; or to state some extraneous fact which caused the particular matter inquired about to be impressed on his memory, but in all such cases it will be found that the matter referred to was of an immaterial character, and could not prejudice appellant as to any material matter in the case,. But here, it seems the reason offered by the justice of the peace Holbrook was a direct reflection on the integrity of the witness. This witness, although a State’s witness, testified to a material fact for the defendant which he had not testified to on the examining trial; and the effect of the testimony of the justice of the peace was to impeach him as to that matter; and the justice of the peace, in that connection, is made to pass judgment on the credibility of that witness’ testimony as to its being unreasonable. We do not believe this opinion of the witness was admissible.
We believe the testimony of the witness 0. W. White as to what occurred between him and appellant, some fifteen minutes after the homicide, was admissible. Evidently, some portion of that testimony had direct reference to thet homicide he had recently committed.
In the motion for new trial, appellant complains of the refusal of the court to give his special requested instruction on self-defense. The gravamen of his contention is that the court should have grouped all of the facts, as detailed by appellant and his witness concerning his action at the time of the homicide. We have examined the court’s charge on self-defense, and do not believe it was necessary to give the requested instruction. The cases of Hjerronymous v. State, 9 Texas Ct. Rep., 805, and McVey v. State, 81 S. W. Rep., 740, have no application here. The court instructed the jury distinctly that appellant had the right to act on the appearances of danger, as well as on actual danger, to be judged from his standpoint at the time, and then told the jury further that, if they believed defendant killed deceased, but that at the time of so doing deceased had made an attack on him with an axe, etc., which caused him to have reasonable expectation or fear of death or serious bodily injury, and under such circumstances he killed deceased, they should acquit him. This, in our opinion, was a sufficient presentation of the law of self-defense applicable to the facts of this case, and it did not become necessary for the court to tell the jury that appellant had the right to approach deceased and ask him to take a drink, etc., as appears in the requested instruction.
Ho charge was requested and no exception reserved to the refusal of the court to instruct the jury under the statute with reference to homicide committed under the influence of insanity produced by the recent use of intoxicating liquor. Of course, appellant could not avail himself of the failure-to charge on that subject in this condition of the record. However, if the testimony on another trial should be the same as is here presented, it might be well for the court to submit that matter to the jury.
We do not deem it necessary to notice the other assignments of error; but for the errors discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.