Easley v. State , 119 Tex. Crim. 408 ( 1931 )

LATTIMORE, Judge.

Conviction for murder; punishment, five years in the penitentiary.

The facts need not be set out at length. Two young men has the temerity, at a dance in the country, to dance with each other as partners. Complaint of this led to a quarrel, followed by a fight. After a short interval the shooting of deceased by appellant occurred. The entire transaction was so connected and interwoven as that the things said and done during the first difficulty and between same and the fatal shooting appears parts of but one continuons transaction, and hence admissible.

Appellant asked for a continuance. It appears from the bill of exception and the qualification thereto, and the facts stated in the application, that two of the absent witnesse lived in the county of trial, and three in the adjoining county of Morris. The court certifies in his qualification to> this bill of exception that no attachment was asked for said witnesses when their absence was discovered, but had it been asked he would have caused same to issue, and since the absent witnesses lived in the county and the adjoining county, it was the court’s opinion that the attendance of said witnesses could have been secured. The record shows that the motion for continuance was made on February 4th, and that the trial took several days. We think the trial court correct in his conclusion that if an attachment had been asked for said absent witnesses, in all probability their presence could have been secured during the trial. There thus appears no diligence. Further it is shown that no affidavit of any of these witnesses was attached to the motion for new trial. On this point in the state’s brief are cited Weaver v. State, 91 Texas Crim. Rep., 637, 240 S. W., 543; Cruz v. State, 100 Texas Crim. Rep., 188, 272 S. W., 486; Wiley v. State, 117 Texas Crim. Rep., 449, 36 S. W. (2d) 495. The overruling of the motion for new trial was correct.

Bills of exception Nos. 2, 3, 4, 6, 7, 8 and 9 relate to occurrences and matters transpiring shortly before the shooting and during and after the prior difficulty which led up without a break to the killing, and shed light thereon. It is doubtful if the several bills of exception sufficiently single out the matters therein objected to, but we have considered all of said bills and believe them without merit.

Bill of exception No. 5 sets out objection to proof that a short time before the killing appellant asked his son for a pistol, telling him “If he don’t leave I will kill him”. The objection was that this testimony showed no connection between the statement of appellant, and deceased, who was shot by appellant a few moments later. We find no facts stated in the bill showing that any other person than deceased was in the mind of appellant, or could have been at the time he made the remark. Being followed shortly by the shooting of deceased, its relevance is apparent. We think the record shows that the threat was aimed at deceased. This bill as qualified shows no error. This disposes of the various matters complained of.

The judgment will be affirmed.

A ffirmed.