J. S. Irvine v. The State, 20 Tex. Ct. App. 12

White, Presiding Judge. This is an appeal from a judgment of conviction for murder of the second degree. The two different theories of the prosecution and the defendant, as insisted upon on the trial below, are most concisely and correctly presented in the able brief of counsel for appellant, as follows: “ The prosecution contended that the appellant, acting in concert with his brother, Tom Irvine, and in pursuance of an agreement between them, brought on the difficulty which resulted in the death of J. W.

Kerr, for the purpose of giving Tom Irvine an excuse or opportunity to murder said Kerr, and that therefore the appellant was as guilty as if he himself had fired the fatal shot.

On the other hand, the defendant contended that he did not participate with his brother, Tom Irvine, in any design to kill or inflict serious bodily injury upon said Kerr; that while it was true that appellant did strike the first blow in the difficulty between the deceased and himself, which immediately preceded the killing, yet his only purpose in so doing was simply to inflict upon said Iierr personal chastisement for some real or supposed insult, and when Kerr and Tom Irvine became engaged in a mortal combat, the appellant then, in good faith and at the peril of his life, attempted to stop the shooting, and to prevent either of said parties from killing or inflicting serious bodily injury upon the other.” Two main points relied upon for a reversal of the judgment are, 1, overruling defendant’s first application for continuance"; 2, defects in the charge of the court.

Ten absent witnesses are named in the application for continuance, the attendance of seven, of whom, it is stated, could not be procured by a postponement of the case to some future day of the term.

There can be no question as to the diligence used by defendant to secure the attendance of said witnesses; there can be no question as to the materiality of the testimony sought to the defense; and, viewed in the light of the testimony adduced, there can be no question that most, if not all, the proposed testimony is probably true, because most of it is corroborated by the testimony of some one or more of the witnesses who did testify, and all such as is not corroborated is matter of most serious moment to the defense.

In substance, defendant proposed to show by the absent witnesses that, at the time of the fatal rencounter, he, the said defendant, was not, as testified by several of the State’s witnesses, armed with a pistol, and that after the difficulty commenced he used his endeavors to prevent his brother and deceased from shooting each other. Some of the evidence proposed may be cumulative of the testimony subsequently elicited from the witnesses who testified; this, however, is no answer to a first application for a continuance. (Pinckord v. The State, 13 Texas Ct. App., 468; Ninnon v. The State, 17 Texas Ct.

App., 650; Hughes v. The State, 18 Texas Ct. App., 130; Wilson v. The State, 18 Texas Ct. Ap., 577.) An application for continuance, though a first one and in compliance with statutory requirements, is, it is true, not a matter of right; still the discretion exercised by the court in overruling it must not be an arbitrary but a “sound” one. (Harris v. The State, 18 Texas Ct. App., 287.) And especially should a “sound discretion” be shown in connection with the overruling of such application, when the court has a second time in effect overruled it in refusing a defendant a new trial after conviction. (Code Crim.

Proc., art. 560; Miller v. The State, 18 Texas Ct. App., 232.) In this case we are of opinion the application should have been granted in the first instance, and that a second error was committed by the court with regard to it when the motion for a new trial was overruled. [Opinion delivered December 12, 1885.] We will not discuss seriatim the objections made to the charge of the court. It occurs to us that in more than one respect it is obnoxious to the criticisms made by appellant’s counsel, and the objections urged to it. In Traylor v.

Townsend, 61 Texas, 144, the court say: “It is undoubtedly improper for a court to place, by frequent repetitions, too prominently before a jury any principle of law involved in the case.” (Citing Powell v. Messer, 18 Texas, 401.) And especially is such rule important in a criminal case, in order to guard against creating an impression upon the minds of the jury as to what may be the opinion of the court with regard to the facts to which the principle is applicable. (7 Texas Ct. App., 183, 332, 383.) A charge is also objectionable which presents the phases of the defense in a negative form only.

A defendant is entitled to a distinct and affirmative, and not merely an implied or negative, presentation of the issues which arise upon his evidence. (Reynolds v. The State, 7 Texas Ct. App., 412; Greta v. The State, 9 Texas Ct. App., 429; Jackson v. The State, 15 Texas Ct. App., 84; White v. The State, 18 Texas Ct. App., 57.) For the errors pointed out, the judgment is reversed and the cause remanded for a new trial. Reversed and remanded.