Rainey Browning v. The State, 26 Tex. Ct. App. 432

White, Presiding Judge. In our opinion, the only question necessary to be considered upon this appeal is the correctness of the action of the lower court in reference to defendant’s application for a continuance. The statutory rule is “that, should an application for continuance be overruled and the defendant convicted, if it appear upon the trial that the evidence of the witness or witnesses named in the application was of a material character, and that the facts set forth in said application were probably true, a new trial should be granted.” (Code Crim.

Proc., art. 560, subd. 6.) When considered, however, in the light of the evidence adduced on the trial, before such. new trial can be claimed as a matter of right by a defendant, it must appear that the absent testimony is both material and probably true. Buff Collier and Mary Browning were the two absent witnesses for whom the continuance was sought.

By Buff Collier it is stated that it was expected to be proven that said witness was at the house of defendant at the time deceased was shot, and “that he, the witness, heard the gun fire; and at the very time of the firing of the fatal shot (as will be shown by the State) that this defendant was at home and in conversation with said witness at the precise time of the killing.” There.can be no question of the materiality, but is such testimony probably true?

Mat Browning, a boy eleven years old and who lived with defendant, and who was left by Jennie Carter at the house with defendant, swears that “there was nobody at the house after Jennie Carter left, except defendant and the children.” Besides this, Buff Collier is not seen on or about the premises of defendant, nor on or about the scene of the homicide that morning, by any of the witnesses who testified, and quite a number of persons were at the body shortly after the homicide.

It was lying in the public road, and it is hardly probable that Buff Collier should have been at defendant’s house at the time of the killing and not afterwards been seen by some one at or about the dead body. By the other witness, Mary Browning, defendant expected to contradict and disprove the evidence of Joe Crisp, a State’s witness, who testified in substance that he (witness) was at Lewis Taylor’s on the morning of the homicide—saw defendant there, and heard defendant tell “his sister, Mary Browning, whilst he was at the gate, to take care of his (defendant’

s) children—that he was going off.” This was but a short time after the killing. It was stated in effect that Mary Browning would testify positively that no such conversation occurred. On the trial Lewis Taylor, a State’s witness, contradicted this portion of Crisp’s testimony, for he testified that Mary Browning “ was in the house whilst the defendant was at the gate, and did not come out, and defendant did not speak to her.” This portion of Crisp’s testimony was only material as a circumstance tending to show that defendant, immediately after the homicide, was contemplating flight.

Suppose that upon this point the witness Crisp was mistaken, or- that he wilfully lied, then, in the light of the other evidence in the case, is it at. all material whether the defendant had such a conversation with his sister or not? Witnesses for the State proved that defendant did not flee, that he was arrested at his own house the-afternoon of the killing. If Mary Browning should disprove Crisp’s testimony as to the matter, would that fact disprove the other inculpatory facts which are uncontradicted and which point with unerring certainty to the defendant’s guilt? We think not.

The rule is well settled that testimony which, if procured,, would not tend to disprove the guilt of the accused is of too immaterial a nature to entitle him to a new trial based upon an application for a continuance to obtain it. (Fernandez v. The State, 4 Texas Ct. App., 419; Chaplin v. The State, 7 Texas Ct. App., 87; Frye v. The State, Id., 94; Hildreth v. The State, 19 Texas Ct. App., 196; Burton v.

The State, 21 Texas, 337.) In view of the fact that the State’s witness, Lewis Taylor? positively contradicted the statement made by Crisp as to the-conversation between defendant and his sister, Mary Browning, and the further fact that it was proven that defendant did not flee or attempt to flee the country, we can not perceive how Mary Browning’s proposed testimony becomes material or could in any manner have affected the result of the trial. “It is not in every case, however (even), where the absent testimony is material and probably true that this court will revise the ruling of the trial judge (in refusing a new trial considered with reference to the application for a continuance).

It is only in a case where, from the evidence adduced upon the trial, we-would be impressed with the conviction not merely that the defendant might probably have been prejudiced in his right by such ruling, but that it was reasonably probable that, if the absent testimony had been before the jury, a verdict more favorable to the defendant would have resulted.” (Covey v. The State, 23 Texas Ct. App., 388; Willison v. The State, 7 Texas Ct.

App., 400.) An examination of the evidence adduced on the trial, and especially the uncontroverted inculpatory facts proven, will, in our opinion, show that the facts expected to be established by Mary Browning are wholly immaterial in this case, and, whether true or false, do not tend to disprove defendant’s guilt,, as shown by the evidence; and if they had been before the jury would not likely or probably have affected the result of the verdict. Appellant, who was a white man, had for several years been living and cohabiting with a negro woman, by whom he had had several children.

He had become inordinately jealous of the relations he believed were existing between this woman •and deceased, who was a negro. He told her if she ever left him he would kill Rucker, the deceased. He had more than once charged the parties with criminal intercourse, but they had denied the imputation, and in a manner allayed his suspicions, until the very day before the homicide, when certain supposed discoveries, made by him out in the woods, again filled him with jealous rage, and upon his returning to his house in the evening, he again charges the woman with her infidelity.

She becomes enraged, tells him she will no longer submit to •such conduct, and indignantly leaves his house. He hunts for her that night in the neighborhood, but can not find her. At day light in the morning he is seen lying across his bed, awake, with his clothes on, by the woman’s sister, 'who proposes that she will go and hunt her sister and bring her back. She leaves on that mission about sun up. Defendant goes into the room where his children are and kisses them good bye.

Shortly after sun rise, Rucker, the deceased, who lives half a mile ■away, is shot and killed in the road whilst driving up the calves, and where defendant knew he was in the habit of going ■every morning. A report of a gun is heard, and one witness also hears a sound as if another cap had been bursted. A short time afterwards defendant appears at Lewis Taylor’s, making •inquiries for his woman. Whilst he is sitting upon his mule at the gate, a sister of the deceased, who had seen the dead body ■of her brother, came hurrying up with cries and lamentations. Defendant sees her and starts to go.

She charges him with the murder; those standing by heard the .charge; he must have heard it. Yet he does not deny—does not say one word in answer to the charge, but rides hurriedly away. His silence and conduct are an admission of the truth of the accusation. (Whart. Crim. Ev., 8 ed., sec. 680; Tyler v. The State, 11 Texas Ct. App., 388.) This is not all. Afterwards, on the same day, in defendant’s •house, a double barreled shot gun is found, one barrel of which ■has evidently been recently discharged, and the cap upon the tube of the other barrel has recently been exploded without discharging the load.

There is a conflict between the witnesses, it is true, as to the kind of gun wadding found on the ground at the place of the killing; this, however, is unimportant, in the light of the other undisputed facts. Opinion delivered November 21, 1888.

It was also attempted to be proven that other parties might have had a motive for taking the life of deceased, by- proving that deceased himself had stated to Bowie Browning, defendant’s brother, that he, deceased, had killed a man with a spade whilst he was working on the railroad near Texarkana, and that he was afraid the dead man’s relatives would hunt him down and kill him. And it was further proven that deceased constantly carried a pistol, and one was found upon the dead body, fastened in the pants pocket so that it required an effort-to get it out.

But no strangers are seen by anyone, lurking about the premises or neighborhood on that day, or at any other time. Though circumstantial, in our opinion the evidence is conclusive of defendant’s guilt, and, in the light of such evidence., we can not see how it is possible that Mary Browning’s testi-. mony, that her brother, the defendant, did not tell her that he was going away, and that she must take care of his children,, is in any wise material, or could in any reasonable manner probably affect the result of the trial.

There are no other questions presented in the record which; it is deemed necessary to discuss. There being no reversible error on this appeal, the judgment is in all things affirmed. Affirmed.