Barrera v. State , 146 Tex. Crim. 328 ( 1943 )

Appellant was assessed a penalty of fifty years in the penitentiary upon his conviction for murder with malice. He is alleged to have murdered Jose Constancia by shooting him with a pistol on the 21st day of June, 1942.

It is not necessary to review the facts of the case as presented by the State. The charge is amply supported. Appellant did not testify but his written confession was introduced by the State. The State's evidence as to the things that took place is not contradicted by anyone.

The complaint for which a reversal is asked is because of the failure of the court to grant appellant a continuance for the absence of a witness. A motion for continuance should be considered by this Court only when presented by bill of exception. Reed v. State 162 S.W.2d 109; Martin v. State162 S.W.2d 722; Moore v. State 161 S.W.2d 83, and authorities discussed. However, in view of the fact that this appeal is from a sentence of fifty years, we have examined the record and find that the complaint is without merit, though it is not discussed because not properly before us.

Among the defenses offered by appellant was the insane state of his mind contributed to by reason of the killing of one of appellant's brothers some years prior thereto by a cousin of the deceased, with the claim that deceased was present and, in view of appellant, was somewhat to blame for that killing. The testimony of another brother of appellant, taken before his departure for service in the Army, was offered in evidence to show the fact of the former killing and the presence of deceased (Jose Constancia), and the details of the affair, involving Jose, who appears not to have been prosecuted for it. The details indicating Jose's participation in such killing were excluded by the trial court, while that part of the evidence telling of the killing and of Jose's presence was admitted. All of this testimony is set out in detail and the bill approved by the court says that he excluded a part under authority of Poole v. State,76 S.W. 565. We are unable to find that this question has been before us since the Poole case was decided. A full and further study of the question has been made and we are of the opinion that the holding in the Poole case on that particular question was proper and that it decided the identical question with which the trial court was confronted. The same ruling will be adhered to in this case and appellant's bill presenting the same is without merit.

We find no other question in the case for consideration and the judgment of the trial court is accordingly affirmed.

ON MOTION FOR REHEARING.