H. Henning v. The State, 24 Tex. Ct. App. 315

Hurt, Judge. An application for a change of venue, alleging the existence of such prejudice against the defendant as would prevent him from having a fair and impartial trial in Tarrant county, supported by the affidavit of three compurgating witnesses, was filed in this case. To controvert this, the State presented an affidavit, sworn to by thirteen citizens, attacking the-means of knowledge of the compurgators and denying the existence of such prejudice. This latter was supplemented by another affidavit, sworn to by six persons, covering the same ground of contest.

It is made to appear, by a bill of exceptions, that, after each of the three compurgators had been examined touching his means of knowledge and the existence of prejudice, the State called one Tucker, and asked him “if there was sufficient prejudice in Tarrant county to prevent a fair trial?” To this question the defendant objected, upon the ground that “the existence of prejudice was not in issue,” and asked the court what was the issue to be determined, whereupon the court stated, in reply to ■said question, that “the means of knowledge of the compurgators was the issue to be determined, but that the court would overrule the objection and admit the evidence.” This evidence was admissible as bearing upon the means of knowledge of the compurgators.

Eespecting the application for a continuance, it is sufficient to say that, waiving the question of diligence, in the light of the subsequently developed testimony, the error in overruling the application—if error there was—became harmless, since the desired testimony was shown to be either immaterial or probably untrue. The assignment of error with regard to the ruling that M. A. Chambers was a competent .juror was not well taken.

The bill of exceptions taken to the ruling does not show he either sat in the case or that he was peremptorily challenged by the defendant, and that an objectionable juror was forced upon him after his challenges were exhausted.

Upon the evidence, two theories of the homicide arose: The State’s witnesses established a case wherein the appellant and those acting with him made an unlawful and deadly attack upon a sheriff’s posse in the discharge of duty, of whom the deceased was one; part of the appellant’s testimony went to show that the attack upon his party was begun by the posse, by the display and use of deadly weapons. If the State’s version was the true one, the homicide resulting was murder of the first degree; the defendant’s, if true—putting it in the light most favorable to him— showed a case of killing in self defense.

Upon both these theories the instructions were full and fair; and the court was not required to charge upon either murder of the second degree or manslaughter, since neither could legitimately arise upon the evidence. Opinion delivered November 16, 1887. Other grounds of exception have received like careful consideration as those discussed, and none of them are believed to be tenable. We find no error of law in the record. Upon the facts there is still less room for question.

If the other evidence had left the guilty complicity of the appellant in doubt, there still remained to confute and condemn him his own declarations and confessions, made to unimpeached witnesses, and deposed to upon the trial. The judgment will be affirmed. Affirmed.