John May v. The State, 22 Tex. Ct. App. 595

Willson, Judge. I. We perceive no error in the action of the court refusing defendant’s application to postpone the trial of the cause. jSTo sufficient diligence was shown to obtain the testimony of the absent witnesses. The facts expected to be proved by all the absent witnesses, except the witness Riggs, were proved by other witnesses on the trial, and were not controverted by the State. As to the facts expected to be proved by the witness Riggs, there is no probability whatever of their truth, as shown by the evidence adduced on the trial.

Defendant’s confession, and all the evidence in the case, conclusively contradict the existence of such facts. II. It was not error to omit to charge the law of murder in the second degree, and manslaughter. There is not a particle of evidence in the case which would demand, or even warrant such charges. The evidence conclusively shows a clear case of murder upon express malice. When the evidence, as in this case, totally fails to raise an issue of a lower degree of homicide than murder in the first degree, the court need not, and should not, charge upon any lower grade of homicide. (Smith v.

The State, 15 Texas Ct. App., 139; Darnell v. The State, Id., 70; Davis v. The State, 14 Texas Ct. App., 645; Benevides v. The State, Id., 378; Rhodes v. The State, 17 Texas Ct. App., 579; Bryant v. The State, 18 Texas Ct. App., 107; Johnson v. The State, Id., 385; Jackson v. The State, Id., 586.) . III. There was no error in refusing to give the special charge requested by defendant in regard to accomplice testimony. There was no evidence showing that the witness Crowder was an accomplice with defendant in relation to the murder.

Defendant himself stated that Crowder had nothing to do with it, and the other evidence in the case corroborates his statement. It could not have changed the result had the special charge been given, and had the jury believed that Crowder was an accomplice, because his testimony was fully corroborated by other evidence. Opinion delivered December 17, 1886. IV. There is no error in the charge of the court. It is a full, fair and correct explanation of the law applicable to the case. The definition and explanation of express malice therein given is in accordance with the authorities. (Willson’s Cr.

Forms, No. 710, p. 332, and cases there cited.) We find no error whatever in the conviction. The evidence establishes a most malicious and atrocious murder, and but for the bad character of the deceased, the jury would doubtless have assessed against the defendant the death penalty. The judgment is affirmed. Affirmed.