Gardner v. State

• Decision Date: 14 November 1900
• Citation: 59 S.W. 1114
• Court: Texas Court of Criminal Appeals
• Parties: GARDNER v. STATE.<SMALL><SUP>1</SUP></SMALL>

59 S.W. 1114

GARDNER v. STATE.¹

Court of Criminal Appeals of Texas.

November 14, 1900.

Appeal from district court, Van Zandt county; J. G. Russell, Judge.

Tom Gardner was convicted of murder in the second degree, and he appeals. Affirmed.

T. R. Yantis and H. C. Geddie, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of murder in the second degree, and the jury assessed his punishment at six years' confinement in the penitentiary. This is the second appeal of this case, the former appeal being reported in 40 Tex. Cr. R. 19, 48 S. W. 170.

Bill of exceptions No. 1 is to the overruling of the application for continuance on account of the absence of various witnesses. Appended to the bill is the following qualification: "This bill is approved, with the additional statement that the district attorney admitted the testimony as true, and it [the application] was introduced by the defendant." Where the evidence in the defendant's application for continuance was admitted by the prosecution to be true, and such facts are admitted as evidence to the jury, defendant has no ground to complain that his application was refused. McGrew v. State, 31 Tex. Cr. R. 336, 20 S. W. 740. We know of no law that gives appellant a legal or constitutional right to have the absent witnesses present when the state admits the truth of the testimony proposed to be proved by the absent witnesses. The judge, therefore, did not err in overruling the application for continuance.

In his motion for new trial, appellant complains that the court erred in charging on mutual combat, "(1) because the evidence adduced on the trial does not warrant such charge; (2) because the charge authorizes the jury, in the event they found there was a mutual combat, to find defendant guilty either of murder in the second degree or manslaughter, without discriminating between the two offenses, or applying the law to such state of facts as would make homicide growing out of a mutual combat murder in the second degree, or applying the law to such a state of facts as would make homicide growing out of a mutual combat manslaughter, but said charge erroneously makes it the province and duty of the jury to determine, `according to the facts and circumstances in evidence,' of which offense defendant was guilty; (3) because said charge accentuates and emphasizes the question of murder in the second degree by repeatedly calling the attention of the jury to same, and was calculated to and did in fact confuse and mislead the jury, to the prejudice of defendant." The charge complained of is as follows: "And you are also further instructed, as a part of the law of this case, to be read and considered by you in connection with the charge hereinbefore given, as follows: If you believe from the evidence beyond a reasonable doubt that the defendant went to the scene of the homicide for the purpose of engaging in a mutual combat with the deceased, and that he there waited for deceased to appear for the purpose of engaging in said combat, and that thereafter deceased did appear, and he and defendant engaged in said combat, and during the progress of the conflict so brought on and...