74 S.W.2d 982


FERRELL
v.
STATE.


No. 16912.


Court of Criminal Appeals of Texas.


June 20, 1934.


Rehearing Denied October 17, 1934.

Commissioners' Decision.

Appeal from District Court, Freestone County; Lex Smith, Judge.

Ernest Ferrell was convicted of murder, and he appeals.

Affirmed.

H. L. Williford, of Fairfield, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is murder; the punishment, confinement in the penitentiary for two
years.

It was charged in the indictment, in substance, that appellant, with malice 
aforethought, killed Noland Davis by shooting him with a gun.

Appellant and Novinca Walker met deceased and Leroy Garrett on a road. Appellant 
had in his possession two pistols. According to the testimony of witnesses for 
the state, as the parties met appellant drew a pistol and instructed Walker to
get the other pistol. As Walker was drawing the pistol, appellant's pistol was
discharged, and deceased fell mortally wounded. Prior to pointing the pistol at 
deceased, appellant said: "Stick them up." Testifying in his own behalf, 
appellant admitted that he had two pistols. He testified that he pulled one of
the pistols out and began playing with it, and that Walker had the other. He
denied that he pointed his pistol at deceased and ordered him to hold his hands
up. According to his version, the shot that killed deceased came from Walker's 
pistol. Walker testified that he had not secured appellant's pistol when the
shot was fired. In short, Walker denied that he fired the fatal shot. The 
state's proof was to the further effect that appellant stated shortly after 
the homicide that Walker did not fire the shot that killed deceased.

The court instructed the jury to acquit appellant if they believed that Walker
shot deceased. Further, the charge embraced an instruction to the effect that
appellant should be acquitted if the jury believed deceased shot himself; and,
again, that an acquittal should follow if the jury believe that the shot was
accidentally fired by appellant, if he in fact fired such shot. We are unable
to reach the conclusion that the evidence is insufficient.

Appellant filed a first application for a continuance, wherein he alleged that
his wife and another witness were absent from the court and that both of said 
witnesses had been subpœnaed. The application is defective

Page 983

in failing to show the materiality of the absent testimony. Branch's Annotated
Penal Code, § 312; Perkins v. State, 120 Tex. Cr. R. 399, 46 S.W.(2d) 672.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the 
judges of the Court of Criminal Appeals and approved by the court.