Wren v. State

In an able motion for rehearing appellant stresses the court's refusal to postpone or continue the case and he insists that the motion for new trial should have been granted for such refusal. We have again carefully examined the matter. It appears that appellant communicated with an attorney almost at once after the killing. Without going into details we state that this court can set no premium by reversal of cases upon the delay of parties in arranging terms with counsel whereby there appears to be a lack of diligence in the application for process. We have again carefully reviewed the application for continuance and have concluded that the only advantage hoped therefrom was that appellant might get one Williams to testify that he believed appellant temporarily insane from the recent use of intoxicating liquor at the time he killed his wife. It appears to be purely conjectural as to whether such would have been the testimony of Williams if present. This we gather to be the fact from careful examination of bill of exceptions No. 5. It is there stated that appellant had not seen or talked with said witness since the homicide and that all he knows about what witness would swear is upon information and belief. How he got the information or what formed the source of his belief, is not made to appear. The courts cannot set aside judgments upon such showing. Not only so, but the record shows that a number of disinterested neighbors of appellant were near by and across the street from where the shooting took place and saw and talked with appellant directly after same, — and no effort was made to prove by any of them temporary insanity on his part. Substantially the same facts as expected from Williams were given in testimony by one Warren who was named in the application for continuance but appeared and testified. Based on the testimony of Warren a hypothetical case was submitted to a physician called on behalf of appellant but he declined to say that upon such facts he believed appellant insane. We do not think ourselves justified in applying the principle involved in Horhouse v. State, 50 S.W. Rep., 361; Hill v. State, 53 S.W. Rep., 845; and Walker v. State, 216 S.W. Rep., 1085, to the extent of reversing this case. There was no diligence in the instant case and no newly discovered evidence. The proposition that Williams would give such testimony was not supported by his affidavit nor that of any other person save appellant in swearing to his motion for new trial, and, as stated, then only upon information and belief.

Appellant also seriously insists that it was error to allow the testimony of the city marshal as to exculpatory statements made by appellant shortly after the shooting. We have carefully examined the bills of exception and the authorities presented supporting the proposition. This court's presumption is always in favor of the correctness of the ruling of the trial court until the contrary is made to appear. By argument and calling attention to statements made by other witnesses the appellant attempts to reach the conclusion that the city marshal must have reached the scene of the killing something like half an hour after same took place. No one was asked to state or attempt to state the length of time. The parties to the killing were in the room where the shooting took place when the marshal reached the scene. Appellant still had in his hand the pistol with which he had taken the life of his wife. There is no attempt to show that he was cool or calm or that the statement was not in every way brought within the rule of res gestae. He told the officer that his wife had shot herself. The objection to testimony as to this statement was upon the ground that he was not warned and because same was immaterial and irrelevant. We have carefully searched the record to ascertain if there be anything in it which would sustain the proposition that the statement made was not a part of the resgestae and have been unable to find it, nor do we believe it immaterial.

We have not been led to conclude ourselves in error in our former opinion in holding that there was no evidence calling for a submission of the theories of an accidental shooting or a shooting under such circumstances as to make it negligent homicide. While not material to a decision on this motion, our attention is called to the fact that the learned trial judge declined to approve the bills of exception taken to the refusal of special charges asked. The notation made by him upon said bills of exception is that it is not necessary under the law to take a bill of exceptions to the refusal of a special charge. The matter was discussed at some length by us in Linder v. State, 94 Tex.Crim. Rep.; 250 S.W. Rep., 703, where we held contray to such view.

Believing the case was properly decided, the motion for rehearing will be overruled.

Overruled.