Ferguson v. State , 101 Tex. Crim. 670 ( 1925 )

Appellant was convicted in the District Court of Limestone County of manslaughter, and his punishment fixed at five years in the penitentiary.

This is the second appeal of this case. See 253 S.W. Rep. 290. The facts are sufficiently stated in the former opinion.

There are seven bills of exception. We are not informed by the bill complaining of the refusal of a continuance, how many prior applications had been presented, but it is not claimed that this was a first application. The bill taken to its refusal is qualified by the trial judge who states that three of the absent witnesses were present at a former term and were not used. There appears no sufficient showing of diligence as to the other three witnesses. Complaint is also made of the refusal of a supplemental application. This bill is also qualified by a statement that at a former trial the absent witness, Allen, was neither summoned nor called to appear as a witness, though a resident of the county. The facts stated as expected were necessarily known to appellant, — and as material at said former trial as at any subsequent time. Diligence is lacking.

Any facts and circumstances showing ill-will and prejudice of a witness for the defense against the deceased are admissible. See authorities collated in Sec. 162, Branch's Annotated P. C.

The fourth bill of exceptions shows no error. The question therein shown to have been propounded to defense witness, Carter, with reference to the action of a mass meeting of the citizens of Mexia and what they did and said relative to deceased, was not admissible and could not rebut the inference of prejudice on the part of said witness Carter, arising from other facts in evidence. The court further qualifies the bill by stating that no information was given him as to those matters set out in the bill of exceptions as the "further testimony" of said witness, had he been permitted to answer said question.

Bill of exceptions No. 6, is unintelligible. It refers to "recommendations" and "charges" and "evidence adduced on cross-examination by the State", none of which are set out, and we have no means of knowing if the complaints be well founded.

An offense is classed as a felony in this State when punishment is fixed by statute by confinement in the penitentiary, even though as an alternative. It was not error to admit proof that a defense witness had pleaded guilty to possession of intoxicating liquor in the Federal court, he having admitted on oral examination that he had been charged with said offense but claimed that it had been dismissed, there being nothing in the record showing it to be a first offense, and the punishment for such offense being fixed in the alternative at confinement in the Federal penitentiary.

Finding no error in the record the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.