MELTON
v.
STATE.

(No. 3895.)

Court of Criminal Appeals of Texas.

January 12, 1916.

Appeal from District Court, Freestone County; A. M. Blackmon, Judge.

Anderson Melton was convicted, and appeals. Reversed and remanded.

R. M. Edwards, O. M. Wroe, and James MacIntosh, all of Fairfield, for appellant. C. C. McDonald, Asst. Atty.
Gen., for the State.

DAVIDSON, J.

Appellant was convicted of murder and given 15 years in the penitentiary.

He filed a second application for continuance, partly written and partly oral; the oral part being by
agreement. The state concedes diligence. It is alleged, among other things, this was the only witness by 
whom he could prove the fact that on the day before the homicide the deceased had threatened the life of
appellant. The absent witness was sick and confined and in bed with consumption. The court overruled the 
application, and motion was then made for postponement long enough to take the depositions of the witness,
who lived about 13 miles from town. The court ordered the case to trial, with permission to get the 
depositions if he could by 1 o'clock the following day. This was impossible, and the case proceeded,
resulting in a conviction of appellant for murder. The application for a continuance should have been
granted. The absent witness was the only witness who knew of the threats, she being the only one present at 
the time the threats were made, except the defendant. Defendant, in the light of application for 
continuance, is not to be regarded as a witness. He does not have to take the stand unless he prefers to do
so. It is a matter entirely discretionary with him. Under such circumstances, the application does not treat
the accused as a witness. If another witness had been present and knew of these facts, appellant would be 
required to exhaust all of his resources in the introduction of testimony; but the witness was absent, and 
appellant was his only witness in regard to these matters. An affidavit of the absent witness was taken by
the state in answer to appellant's motion for a new trial. In some respects it was not in conformity with,
but rather contradictory to, the application for continuance, but not so as to the threats made the previous
evening. In that respect it was in accordance with appellant's statements in his application for 
continuance. This was a very important matter for appellant on his theory of self-defense, as he relied upon
apparent danger. The question of actual danger was not in


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the case. We are of opinion that this was such a showing for a continuance as should have been granted.

Another question growing out of the introduction of evidence of threats is suggested for reversal. Defendant
testified to threats made by deceased and what he thought was apparent danger at the time that he fired the
shot that killed the deceased. It is unnecessary to go into a detailed statement of all those matters. The
question of apparent danger was clearly suggested by the evidence.

In this attitude of the case, appellant proposed to prove that deceased was a man of dangerous character
among his race, he and defendant being negroes, but was not so regarded as to white men. These matters
having been proved, appellant then offered to show that deceased was a man of such character and reputation
that he would likely execute any threat he had made to kill or inflict serious bodily injury. The court 
excluded this testimony upon the theory that it was but an opinion of the witness, and that the jury was as
well qualified to pass on this matter as was the witness. We do not understand the law to be as found by the 
court. The statute provides that, where threats are shown to take life or inflict serious bodily injury, the
deceased's reputation as being a man who was likely to execute his threats, or otherwise, becomes a 
legitimate subject of investigation. The court erred in this matter. This character of testimony has always
been held to be legitimate and proper. If the character of the deceased is such that he would likely execute 
a threat he had made, it becomes legitimate for the accused to show this by legitimate testimony, and, on 
the other hand, the state may prove good character of the deceased upon the theory that, while he may have 
made the threats, still he was of that character and standing that would not render it probable that he 
would execute the threats. However, these matters are provided by statute, and the defendant was entitled to
have the witness state to the jury whether or not deceased was a man who would likely execute a threat when
he made it. For this reason the judgment should be reversed.

The state met the defendant's application for a new trial with the affidavit of the absent witness mentioned
in the application for continuance. In part, this affidavit would contradict the motion for continuance, but
would sustain it with reference to the threat made the day prior to the homicide. This was entertained by 
the court, and evidently considered in making up his judgment overruling the motion for a new trial. The 
affidavit shows to have been taken before counsel for the state. This counsel swears the witness who made 
the affidavit. Under the authorities found in our reports, this affidavit should not have been considered, 
and the court was in error in considering it under the circumstances.

For the reasons indicated, the judgment is reversed, and the cause remanded.