J. W. Brooks v. The State, 24 Tex. Ct. App. 274

Willson, Judge. I. As the evidence in this case impresses itself upon our minds, it does not raise the issues of manslaughter and self defense, or either of said issues, and therefore the court did not err in refusing to instruct the jury upon the law of such issues. The only eye witness .to the homicide states that the deceased and the defendant were standing some five feet apart, deceased unarmed, defendant with a knife in his hand. They were quarreling. Witness looked in another direction and did not see the first lick struck.

He heard a blow, however, and immediately looked toward the parties and saw a gash .in deceased’s jaw. Deceased then called to witness and said: “Pull him off; he is cutting me all to pieces.” Witness rushed up to the parties, and defendant with his knife struck at witness. Deceased finally broke loose from defendant and ran fifty or sixty yards, around in a circle, and into the house, where he sank down and died. Defendant ran after deceased, attempting to again cut him, and did again cut him after deceased had sank down in the .house.

Witness ran after the defendant as defendant was phasing the deceased, and called out to defendant to quit and let deceased alone. Defendant turned his head and told witness if he, witness, came, on to him he would cut him. These are the uncontradicted facts as developed by the record. Giving to the entire evidence the most favorable consideration for the defendant, the homicide could not be of a lower grade than murder in the second degree, and excludes the theory of self defense. Opinion delivered November 12, 1887. II. There was no error in refusing defendant’s application for a continuance.

Conceding that sufficient diligence had been •used to obtain the alleged absent testimony, it does not appear from the application that the said alleged testimony was mateirial.

Proof of threats made by deceased to take defendant’s life, and that deceased was a man of violent and dangerous character, and that defendant had knowledge at the time of the homicide of such threats and character of deceased, would be immaterial, unless it was shown that at the time of the homicide the deceased did some act,indicating his purpose then to take the life of the defendant, or do him serious bodily harm. (Wilson’s Texas Crim.

Laws, secs. 1052, 1053, 1054.) The application for continuance does not show the materiality of the testimony as to threats and the character of the deceased by alleging that deceased, at the time of the homicide, did any act indicat'ing a purpose to injure the defendant. Bor does the evidence adduced on the trial show any su'ch act on the part of the dej ceased, and if said absent testimony had been adduced on the trial, it would have been irrelevant and immaterial, and could not have afforded the defendant any justification. ITT. There was no error in overruling the defendant’s motion i for a new trial.

The attempt made to show misconduct on the ¡part of the jury was fully met and successfully answered by the 'State. We have found no error in the conviction, and the judgment iis affirmed. Affirmed.