42 S.W. 995
HARMANSON 
v. 
STATE.
Court of Criminal Appeals of Texas.
November 17, 1897.
        Appeal from district court, Freestone county; L. B. Cobb, Judge.
        J. H. Harmanson was convicted of murder in the second degree, and appeals. Affirmed.
        Mann Trice, for the State.
        HENDERSON, J.
        Appellant was convicted of murder in the second degree, and his punishment assessed at five years 
in the penitentiary, and prosecutes this appeal.
        Appellant made a motion for a continuance on account of the absence of one John Sewall, a witness 
on his behalf. The motion fails to show diligence. Aside from this, the motion shows that appellant 
expected to show by Sewall that he (defendant) told him the circumstances of the killing a short time 
thereafter. If the statements of appellant were res gestæ, the testimony would be admissible. The 
application, however, does not show the connection or circumstances under which said statements of 
defendant were made to Sewall. all. In the absence of such showing, we cannot presume, in favor of 
appellant, that the testimony was res gestæ. The onus was on appellant in his application to show 
affirmatively the admissibility of said testimony as res gestæ. Having failed to do this, there was no error 
in the court's overruling the motion.
        Appellant complains of the charge of the court on self-defense, and he insists that the limitation put 
upon said charge on self-defense, by qualifying same with a charge on provoking the difficulty, was not 
warranted by the testimony, and was calculated to impair the rights of the defendant. The charge of the 
court as given on this subject was excepted to at the time, and, if it was material error, it would be cause 
for reversal. We have examined the record carefully, and, in our opinion, the testimony warranted such a 
charge, or at least the court was authorized to give the jury a charge predicated on the idea that the 
defendant may have sought the occasion and brought on the difficulty for the purpose of killing deceased. 
The state showed by evidence that a former grudge, of a month or two's standing, had existed between 
the appellant and deceased. On the morning of the day of the homicide defendant sent deceased word "to 
prepare himself; that he was going to meet him, and meet him like a man." This message was conveyed 
to the deceased about noon. Deceased then armed himself with a pistol, and returned to his work, which 
was in a field beyond appellant's, whose premises he had to pass in his route. On his return home in the 
evening, he passed the lot of appellant. Appellant was there, and had his gun loaded with buckshot. He 
hailed deceased as he passed. Deceased made no reply at first. Defendant then called to him again, "Hold 
up! Did you get the word I sent you?" Deceased asked him, "What word?" Defendant said, "The word I 
sent you." Defendant made a move to take up his gun, and deceased then said, "Come to the pasture, 
and give a man a chance." Deceased rode off a few steps. Defendant presented his gun on him, and at 
this juncture deceased jumped from his horse, and defendant then fired, but missed deceased. Deceased 
then fired at defendant with his pistol. Defendant then fired again at him with his shotgun, and killed him. 
These were substantially the circumstances attending the killing as shown by the state's witnesses. 
Defendant's witnesses differed with the state's witnesses in some material respects as to the facts prior to 
and attending the killing. This, however, did not make it error on the part of the court to present the 
theory of provoking and bringing on the difficulty on the part of the appellant. While the court did not give 
a charge on provoking and bringing on the difficulty, yet the charge on mutual combat was justified by the 
evidence in this case; in fact, was more liberal towards appellant than a charge on provoking the difficulty 
would have been. The court gave the defendant the full benefit of a charge on self-defense, and presented 
the defendant's theory of the case. He also instructed the jury that if defendant and deceased entered into 
a difficulty, and fought willingly, the defendant could not set up and claim self-defense. This was the 
state's theory, and the evidence justified the court in giving said instruction.
        We do not believe there is anything in the other objections urged against the charge on
Page 996
self-defense, and will therefore not discuss the same.
        There was no evidence in this case requiring a charge on manslaughter, and the failure of the court 
to give such a charge was not error. The judgment is affirmed.
        HURT, P. J., absent.