William Testard v. The State, 26 Tex. Ct. App. 260

Willson, Judge. I. While it was irregular and improper to admit the testimony on the trial before the jury in relation to one William Hensley, it is not made to appear by the defendant’s bill of exception to this action'of the court, or otherwise, that said testimony prejudiced, or might probably have prejudiced or injured the defendant in.any way.

It is not made to appear that the jury or any one of them had any knowledge of defendant’s application for a continuance based upon the ground of the absence of said Hensley, or even that any of the jurors knew that said Hensley was desired by defendant as a witness in his behalf. Said application for continuance was disposed of by the court before the jury was impaneled, and a reasonable presumption would be that the jurors who tried the case had no knowledge whatever of said application, or of said Hensley, or his connection with the case.

If it had been made to appear that the jurors, or any of them, had knowledge of said application, then indeed the testimony in regard to said Hensley might have impressed the minds of the jury prejudicially to the defendant, and its admission would have been material error. But, in the absence of any showing that any one of the jury had such knowledge, we can not perceive any material error in the admission of said testimony. II.

Wisely, we think, the law vests a trial judge with a broad discretion in keeping open the door for the admission of competent and legal evidence until the • argument of the cause has been concluded, and also to direct and control the introdüc» fion of evidence and the examination of witnesses. Before this court will revise the action and rulings of a trial judge in such. matters, and pronounce the same erroneous, it must clearly appear to us that the trial judge has abused the discretion confided to him by law, and that thereby the defendant has probably suffered injury to his legal' rights.

Ho such abuse of discretion is shown by defendant’s bills of exception six and seven. Opinion delivered October 27, 1888. III. There was no error committed in admitting the testimony proving the declarations of the deceased. These declarations were admissible as dying declarations, the >roper predicate for their admission having been fully estabshed. We believe furthermore that they were admissible as ret gestee. IY. Ho good and sufficient ground for a new trial \\ as shown and the court did not err in refusing defendant’s mot on for a new trial.

It is well settled that misconduct of a jury is not ground for a new trial unless it is shown to have been such as affected the fairness and impartiality of the trial. (Jack v. The State, 20 Texas Ct. App., 656; Allen v. The State, 17 Texas Ct. App., 637; McDonald v. The State, 15 Texas Ct. App., 493.) Ho such misconduct on the part of the jury in this case has been made to appear.

Refusing defendant’s application for a continuance or postponement of the cause does not present good ground for a new trial, because the facts as stated in said ápplication, considered in connection with evidence adduced on the trial, do not appear to be probably true. (Code Crim. Proc., art. 560; Melton v. The State, 24 Texas Ct. App., 47; Parker v. The State, Id., 61; Henning v. The State, Id., 315.) There is no question as to the sufficiency of the evidence to sustain the.conviction.

In fact, the evidence would warrant a conviction for murder in the first degree, which doubtless would have been the verdict of the jury had it not been for the fact that at the time the defendant committed the homicide he was intoxicated. Ho complaint is made of the charge of the court, and we have found no error in it. The judgment is affirmed. Affirmed«,