Hughes v. State

• Decision Date: 14 March 1923
• Docket Number: (No. 7597.)
• Citation: 252 S.W. 774
• Parties: HUGHES v. STATE.
• Court: Texas Court of Criminal Appeals

252 S.W. 774

HUGHES v. STATE.

(No. 7597.)

Court of Criminal Appeals of Texas.

March 14, 1923.

Rehearing Denied June 27, 1923.

Appeal from District Court, Young County; P. A. Martin, Judge.

Fred Hughes was convicted of murder, and he appeals. Affirmed.

Thos. G. Binkley, of Graham, H. P. Shead, of Fort Worth, and Jno. R. Moore, of Graham, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

Conviction is for murder; punishment fixed at confinement in the penitentiary for a period of 25 years.

Appellant shot and killed A. Enloe, Jr. The state's evidence is sufficient to support the verdict of murder. Appellant testified to a case of self-defense. According to his statement, he was invited by deceased into a building used as a dance hall, but, as we understand it, not occupied at the time; the deceased was urging the appellant, who claimed to be an officer, to refrain from interfering with the deceased pursuing the occupation of illicit whisky seller. From appellant's testimony we take the following quotation:

"* * * Mr. Enloe, the older gentleman, * * * walked up to me on the sidewalk and says, `I want to talk to you, and, by God, I mean business!' * * * I says, `Abe, let's talk out here on the sidewalk,' and he says: `No, we will go in the dance hall. There is no one in there.' * * * He says, `I am going to sell that whisky,' and I says: `I can't help that; if I catch you, I will take you to Graham.' He says, `I have got some money,' and started to give it to me. I says, `Don't do that, don't bring this proposition to me again.' He says, `I will get it by you, you s—n of a b___h, or I will kill you,' and I says, `Let your conscience be your guide,' and started to walk backwards, and when I got to the partition he moved his head and then disappeared, and the next I saw of him was the bulk of his shoulders and the gun leveled at me, and he fired, and I jerked my gun and fired twice and seen his gun fall, and then I turned my head and saw young Enloe running toward me, and his right hand was stretched out and his pistol smoking, and I fired one shot, and his gun dropped and he fell, and I started to go to the front, and when I got to the partition Mr. Enloe (the older man) was lying there."

An application for a continuance was filed on account of the absence of a number of witnesses by whom the appellant expected to prove communicated threats made by deceased against the appellant. The bill of exceptions complaining of the action of the court in overruling the motion relates to the absence of the witness George Flourney alone. The record is silent touching whether the other witnesses appeared. The bill states that the diligence consisted in having "process duly issued which was served upon the said witness and returns made thereon"; that said witness was reported by his physician to be sick and unable to attend court. It is charged in the application that the witness resided in Jones county. The pleader contents himself with the statement:

"That the said witness George Flourney resides in Jones county, Tex., and that his defendant has used due and sufficient diligence to procure the attendance of said witness in his behalf; that said witness was served with process herein, and his physician reports that he is ill and unable to be in attendance at this time."

No dates are given touching the date of the issuance of the subpœna nor its return; neither the subpœna nor the return was attached to the motion. The truth of the averments in the applcation for a continuance are addressed to the sound discretion of the court. This is an express statutory provision. See article 608, subd. 6, Code of Crim. Proc. If, looking to the evidence upon the trial, it appeared to the trial court that the evidence was material and probably true, he would not have the discretion to overrule the motion. It is only when the trial court abuses this discretion in refusing a continuance or to grant a new trial that this court will review the action of the trial court denying a continuance. Peace v. State, 27 Tex. Cr. App. 83, 10 S. W. 761; Covey v. State, 23 Tex. App. 388, 5 S. W. 283; Vernon's Tex. Crim. Stat. vol. 2, p. 321, note 34; Bocknight v. State, 87 Tex. Cr. R. 428, 222 S. W. 259; Russell v. State, 88 Tex. Cr. R. 582, 228 S. W. 948; Hoover v. State, 89 Tex. Cr. R. 378, 230 S. W. 982.

In the instant case, the appellant was a witness but did not testify that George Flourney had communicated to him any threats; nor did he testify that any other witness had done so. He introduced, however, a number of witnesses who testified that the deceased had made threats to take the life of the appellant and that these threats were communicated to him before the homicide.

After the shooting, appellant claimed that the deceased was armed and directed attention to a...