The opinion
ON REHEARING.
January 3, 1912.
HARPER, Judge.
At a former day of this term this case was affirmed, and appellant ’has filed a motion for rehearing, insisting that the court erred in holding that the trial court did not err in overruling his motion for a continuance, alleging that in the motion for a continuance, was also an application for a writ of attachment, and stating that the application contained the following language: “That this defendant has reasonable expectation of procuring the testimony of the said witnesses, Lena Scott and Eliza Manning, at the next term of this court, and he now asks this court to cause to be issued for said witnesses, an attachment, procuring and securing their attendance as witnesses in this case at the next term of this court in behalf of this defendant.” If the court had continued the case, he should, and doubtless would, have granted the application for a writ of attachment, but
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we fail to see how an application for an attachment, being embodied in the application for a continuance, would add any strength or force to the application for a continuance. This application must be, and ' doubtless was, acted on in accordance ivith the rules of law applicable to a second application for a continuance. The witness, Eliza Manning, attended, and the record shows that the cause had been continued the term before on account of the absence of the witness, Lena Scott. In this second application for a continuance on account of the absence of this witness, appellant stated he expected to prove by her, that “deceased had told her to tell defendant to come up there, and he (deceased) would pay defendant the one dollar he owed his wife, and that she told these facts to the defendant.” This is all that it is stated that it is expected to be proved by this witness, and it was pertinent testimony as explaining the reason why defendant had gone -to where deceased was at work, but on the trial of the case, the defendant himself testified that the witness had told him these facts, and this was the reason why he had gone up there. Ho person testified otherwise, but in addition to the defendant’s testimony, his wife also testified that she heard Lena Scott tell her husband that morning that deceased had told her to tell him to come to where he was at work, and he (deceased) would pay the dollar he was owing, and that defendant said he was going up there to collect the money. This testimony- was undisputed by any witness, and the record being in this condition, was it error for the court to overrule the motion, or to refuse to grant a new trial, because the attendance of the witness was not obtained? The statutes provide that in the second application, he must swear “that the testimony can not be procured from any other source known to the defendant.” In this instance it appears there was another source, and it was obtained from such source. (Laudermilk v. State, 83 S. W. Rep., 1107 .) This court has held that a second application for continuance for absent witnesses is properly overruled, and defendant can not be heard to complain, where it appears that the same facts have been proved by witnesses testifying at the trial. Easterwood v. State, 34 Texas Crim. Rep., 400 ; Halliburton v. State, 34 Texas Crim. Rep., 410 ; Bluman v. State, 33 Texas Crim. Rep., 43 ; Jackson v. State, 31 Texas Crim. Rep., 552 ; Duncan v. State, 30 Texas Crim. App., 1; Blackwell v. State, 29 Texas Crim. App., 194; Brown v. State, 23 Texas Crim. App., 214; Walker v. State, 13 Texas Crim. App., 618; Beatey v. State, 16 Texas Crim. App., 421; Allison v. State, 14 Texas Crim. App., 402; Hooper v. State, 29 Texas Crim. App., 614; Parkerson v. State, 9 Texas Crim. App., 72; Bush v. State, 40 Texas Crim. Rep., 539 ; Petty v. State, 59 Texas Crim. Rep., 586 ; Fulkerson v. State, 57 Texas Crim. Rep., 81 , and authorities there cited; Buckner v. State, 55 Texas Crim. Rep., 511 ; Dobbs v. State, 54 Texas Crim. Rep., 579 . Humerous other authorities could be cited holding that it is not. error for the court to overrule a second application for a continuance where the evidence is merely cumulative of that adduced
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on the trial, and especially is this true where the testimony is un contradicted by the State’s evidence, as is the case in this instance. It is true that the State could not compel or require defendant or his wife to testify, but when they voluntarily take the stand as witnesses, they stand in the same attitude as other witnesses, and as they testified to all the facts alleged, it was expected to be proven by the absent witness and which statements were not contested by the State, but were wholly uncontradicted, to hold that a court should grant a new trial to obtain the testimony of a witness to testify to facts in evidence uncontroverted, would be an absurdity. In the case of Bush v. State, 40 Texas Crim. Rep., 541 , the court says: “Even where the testimony is material and probably true, a continuance will not be granted, unless such absent testimony would,- if adduced, probably induce a more favorable verdict to the accused than that found by the jury.” In this case, all the testimony of this witness would do, would tend to show that it was not a premeditated murder, and the jury had found that it was not.
Appellant also insists that the court erred in permitting the State to support its witness, Joe Weathersby, by proving and introducing in evidence the first statement of this witness given at the examining trial, which was made shortly after the killing. When this witness was placed on the stand by the State, on cross-examination, defendant asked him if he had not said to defendant, shortly after the killing, in the presence of Frank Piper and Cleveland Parker, “I will do all I can to give you twenty-five years in the penitentiary,” and when the witness denied making this remark, the defendant placed the two witnesses on the stand who testified they heard the State’s witness make that statement. Again, the State’s witness, "Weathersby, was asked on cross-examination if at the examining trial he did not state “I had just heard Jim Allen say, ‘Well, you ain’t going to pay.it;’ I heard a scuffling and then heard the shot,” and when he denied making such statement, the defendant placed S. 0. Tisdale on the witness stand to prove that he did make such statement, and introduced that portion of the testimony taken at the examining trial. There were but two eye-witnesses to the killing, Weathersby, the State’s witness, and defendant, and there was a sharp conflict in their testimony, and this latter statement was introduced for the purpose to show that he had stated he did not see the shooting, when his testimony on this trial, and at the examining trial, minutely described the action of both men prior to and at the time of the shooting. The other impeaching testimony was introduced to show animosity, and that his story at this .trial was manufactured to carry out the threat that he is said to have made, by the witnesses Piper and Parker, both of whom were employes of defendant. Having thus sought to impeach and discredit the testimony of the State’s witness, it was permissible and proper for the State to introduce evidence in support of its witness, and prove that the first statement made by him in no material way differed from the evidence on this trial, and to introduce such statement for this
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purpose. Akin v. State, 119 S. W. Rep., 863 ; Jones v. State, 38 Texas Crim. Rep., 87 ; Sullivan v. Fant, 51 Texas Crim, Rep., 6, 110 S. W. Rep., 507 ; Simpson v. State, 46 Texas Crim. Rep., 551 ; Founder v. State, 46 Texas Crim., 121; Bozeman v. State, 34 Texas Crim. Rep., 503 ; Duke v. State, 35 Texas Crim. Rep., 283 ; Sanders v. State, 31 Texas Crim. Rep., 525 ; Cornway v. State, 33 Texas Crim. Rep., 327 ; English v. State, 34 Texas Crim. Rep., 190 ; Riojas v. State, 36 Texas Crim. Rep., 182 ; Kimball v. State, 37 Texas Crim. Rep., 230 ; Bell v. State, 20 S. W. Rep., 362 ; Stephens v. State, 26 S. W. Rep., 728 ; Dicker v. State, 32 S. W. Rep., 541 ; Parker v. State, 34 S. W. Rep., 265 ; Cox v. State, 44 S. W., 157 ; Keith v. State, 44 S. W. Rep., 849 ; Porter v. State, 50 S. W. Rep., 380 ; Poyner v. State, 51 S. W. Rep., 376 ; Jones v. State, 25 S. W. Rep., 634 . Judge Hurt discusses this question at length in the case of Craig v. State, 30 Texas Crim. App., 619, and in a recent case, Hardin v. State, 57 Texas Crim. Rep., 401 , Judge Davidson, speaking for the court, says: “The State having attacked the witness by showing statements made contradictory to what he testified,
it is clearly permissible
for appellant to introduce testimony to the effect that witness had made similar statements shortly afterwards which were in consonance with his testimony on the trial.”
Motion for rehearing is overruled.
Overruled.