Blue v. State

Appellant moved to continue the case on account of the absence of a witness named Green by whom he expected to prove that he "acted in his own self-defense; that this defendant was attacked by the said Sol Ellis who made demonstration as if to draw a pistol from his pocket; that said demonstration was accompanied with words, acts, and the manner of the said prosecuting witness, Sol Ellls, indicating an immediate intention upon the part of the said Sol Ellis to inflict upon the defendant death or serious bodily injury." And he recites further, that he, appellant, was at the time doing nothing and disturbing nobody.

The State's theory was that appellant made an unnecessary assault upon Ellis; that Ellis fled and appellant shot him as he ran away, and the evidence is conclusive that he was shot from behind. Quite a number of witnesses testified to the immediate facts; among them, several in behalf of the defendant. The allegations in the motion, as to the facts expected to be proved, are very general indeed and hardly sufficient to have authorized the court to continue. Viewing this entire record, we are of opinion that the testimony of this absent witness, even if he was expected to swear, would probably not be regarded as true. Be this as it may, we are of opinion that the motion is too general.

Henry Mitchell in behalf of appellant testified to the good reputation of appellant as being a quiet, law abiding citizen. On cross-examination he was asked if he had not heard of the defendant on one occasion having a difficulty with a white man by the name of Phillips, and drawing a gun on him. Witness replied that he had heard of it for the first time at the trial of this case.

Objection was urged that it was hearsay, immaterial, irrelevant and shed no light upon the case and tended to prejudice the right of the defendant, etc. . . . As this was presented, we do not believe it was error and if so, not of sufficient importance to require a reversal of the judgment. The reputation of appellant had been presented to the jury at his instigation, and it was shown to be that of a quiet, law abiding citizen. General reputation is in the nature of hearsay. If this witness had heard anything derogatory to appellant's character, he could be crossed about it, for he had testified to the fact that his reputation was good. He stated, however, that he never heard of the transaction until he came to this trial. As this is presented, even if error, it is not of sufficient importance to require a reversal of the judgment.

We think there is no sufficient reason shown why the judgment should be reversed. The judgment is affirmed.

Affirmed.

Henderson, Judge, absent.

[Motion for rehearing overruled, January 22, 1908, without written opinion. — Reporter.]