Deuran v. State , 114 Tex. Crim. 210 ( 1929 )

Offense, murder; penalty, twenty years.

Appellant and deceased attended a "party" on the night of the tragedy. Deceased was drunk and appellant was perhaps drinking. At this party they had an argument in which deceased showed considerable anger and resentment towards appellant. After twelve o'clock appellant started home. Almost immediately thereafter deceased also left. It seems to be the theory of the State that appellant waited for the deceased in the street outside and shot him as he passed by. He had a bullet hole under his left armpit. It was appellant's theory that deceased overtook him and attacked him with a knife. A small penknife was found about twenty feet from the body. There was testimony that deceased was advancing upon appellant when he shot him and that appellant immediately before he shot said, "Don't cut me with that knife."

When the case was called for trial, appellant filed his third application for a continuance on account of the absence of witness McCrary, who seems to have been an eyewitness to the killing. By him appellant alleges he could prove that he heard the defendant say to deceased just before the shooting, "Don't come on me with that knife"; that the deceased continued to advance and that defendant backed away a few steps and fired one shot and that he knows that the shot entered deceased's body from the front and came out at the back. On motion for new trial appellant failed to attach any affidavit of this witness thereto. The State, however, upon hearing of said motion, introduced the testimony of this witness elicited by direct and cross-examination at an examining trial theretofore held. This contradicts that which appellant alleges he could prove by the witness, except as to the exit and entrance of the bullet. Appellant cross-examined this witness apparently on examining trial and if he could prove this fact, same does not appear from such cross-examination. Under Art. 757, C. C. P. (1925), the Court on motion for new trial may hear such facts presented either by affidavit or oral testimony as would render the error in overruling the motion for a continuance harmless. Bennett v. State, 14 S.W.2d 61; Jordan v. State, 106 Tex. Crim. 661. The Court is invested with discretion in a matter of this kind under the above facts and his ruling will not be revised except where it clearly appears that he has abused same. Art. 543, Vernon's C. C. P., Note 33, where the authorities will be found collated.

We are of the opinion that the trial court's action in this particular matter was not erroneous.

Complaint is also made of proof by the State in rebuttal as to the relative size of the parties, it being shown by the State that deceased was much smaller than appellant. Where self-defense was based on an attack by the deceased with a knife, as in this case, we think the testimony was admissible. The size of the knife was proven without objection and the size of the deceased would seem to be likewise admissible.

Believing the evidence sufficient and finding no error in the record, the judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.