"Where one person intentionally kills another, it depends upon the circumstances attending the killing whether the act is justifiable or not, or if not justifiable, the degree of his guilt." This was in that part of the charge defining murder and not in that portion submitting the issues to the jury. All definitions necessarily state the law, as in defining malice, but this does not tell the jury that in this case, the evidence shows an intentional killing; it is but telling the jury what the law is in case of an intentional killing, and such instructions have always been held not to be upon the weight to be given the testimony. Besides, in this case there was no issue of accidental homicide, or other issues raised by the testimony that could have rendered this other than an intentional homicide. Appellant testifies to facts which would justify, but he admits he intentionally struck the blows under circumstances which show an intention to kill.

The other objections made to the charge were sustained by the court and corrections made in accordance with the suggestions.

The ill-will deceased had manifested towards appellant, in so far as this record discloses, grew out of the election of a Senator, held some time prior to the general election. While, perhaps, they advocated different persons for the office of county clerk in the general election, yet there is nothing to indicate that any ill-will had developed between any person or persons on account of this latter contest. Witnesses for the State and defendant both testify that, while there were some pleasantries passed, and they were joking each other, all were doing so good humoredly, and there is nothing to indicate that deceased took any part in it. Under such circumstances, the court did not err in sustaining objections to questions to witnesses to ascertain in which way they voted in the contest for county clerk. No good purpose could or would be subserved, for there is nothing in the record to suggest they entertained ill-will towards appellant on account of his position in that election. Neither do the bills claim that such questions were expected to be followed by questions to the witnesses, or state that other proof would be offered to show that they did entertain ill-will towards appellant on account of his choice for county clerk. In fact, a brother of Mrs. Trevathan, Walter Jordan, was on this trial a very material witness for appellant, and yet the record shows that appellant opposed the election of Mrs. Trevathan. Of course the ill-will, bias or interest of a witness is always material as contended by appellant, but this difficulty grew out of the senatorial contest, and the record discloses that the election for county clerk did not enter into it in any manner, nor that any ill-will between anyone grew out of the latter election, nor does appellant claim in his bill that he expected to show that any illwill did grow therefrom, only that he could have shown that some of the witnesses voted different from the way appellant voted. These bills present no error as the answer, if made as contended by appellant, would not have shown bias, or ill-will towards appellant.

In another bill it is claimed the court erred in not permitting B. Ladd and others to testify what the "report was the negro made" who notified

them of the difficulty. This would be hearsay, pure and simple, and the court did not err in excluding it. The negro was not a witness in the case. If he knew any facts that would be material to defendant, he should have been called as a witness, and not seek to elicit that fact by what he, the negro, told some other person. Again, the bill is insufficient to present the question for review, for it does not state what the witness would have testified the negro reported, and if the testimony had been admissible, it would be impossible for us to determine whether or not it would or could have been material or relevant.

In another bill it is shown that in presenting the case to the jury, defendant's counsel "had dwelled on the fact that appellant had a good reputation for peace and violence, and therefore would not have committed an unlawful killing." In rejoinder, State's counsel urged that "he had known of a minister of the gospel who had always borne an enviable reputation, committing a heinous murder after he was sixty years old." It is true that there was no evidence in the record that this minister had committed the crime of murder, yet if counsel, in their argument, are so restricted that they can not use illustrations, it would confine their argument with too narrow limits. In the Standard Encyclopedia of Evidence it is said: "The relating of jokes, circumstances of other cases, actual or hypothetical, or instances similar to those involved, either real or imaginary, in illustrating, emphasizing, or impressing a point in argument, is usually considered within the bounds of proper forensic discussion." (Hudson v. State, 44 Texas Crim. Rep., 251; Jones v. State, 46 S. W. Rep., 933.) This is not only the rule in our own State, but elsewhere. State v. Busse, 127 Iowa, 318; Jackson v. Commonwealth, 100 Ky., 239; People v. DeCamp, 146 Mich., 533; State v. Gannon, 75 Conn., 206. However, counsel must not use this license to get before the jury prejudicial facts not in evidence, for if they do it will work a reversal of the case.

The only other bill in the record relates to what is termed newly discovered evidence. This case had been pending on the docket more than three years at the time of this trial; this fact, of course, would not prevent the evidence from being newly discovered, if in fact, the bill had shown what diligence had been used by appellant to discover this evidence before the trial. In this the bill is lacking. However, it may be said there was no fact or circumstance within the knowledge of appellant that would put him on inquiry as to the testimony of Mr. Burns. This witness says he would testify on another trial he heard deceased say that at the senatorial election, of which appellant was manager, he had positive proof that some ten or twelve votes had been changed by appellant, and he expected to get appellant indicted; that he was going to push it to the bitter end, and having a knife in his hand, said he "intended to use that knife and to drop his own blood to carry his point; that he was going to use the knife on appellant if he failed in the prosecution." This was a threat and appellant could not know that deceased had made this threat to this witness and there was nothing to put him on inquiry in regard to it. However, this threat, it is plain,

was not communicated to defendant-it could have no bearing on how the circumstances appeared to him at the time, and if known at the time of the trial would have been admissible only on the issue as to who began the difficulty; however, it would have been admissible on that issue, and the question that arises, had he known this fact, had the witness been summoned and failed to attend, would this have been sufficient ground for continuance, if so, the new trial should have been granted. The record discloses this case had been continued a number of times, at least, six. Our Code provides that on the second or any subsequent application the appellant must allege and swear "that the testimony can not be procured from any other source." (Art. 598, White's Ann. Code.) Could appellant make this application under the circumstances as proven in this record? He knew them, and the record discloses that several witnesses were present and would swear and did swear on the trial to threats made by deceased of the same character and kind. Jim Dyer, D. Crumpler, Sam Trawick, John O'Quinn, Frank Carsons, and perhaps others testified to similar threats as the witness Burns says he would testify to on another trial. So, if appellant had known of his testimony, and had the witness Burns summoned as a witness, his absence under the statute would not have been ground for a second or subsequent continuance of the case, and, of course, under such circumstances presents no ground for a new trial. The other witness alleged to be newly discovered, Mr. Red, appears in a different light. He says immediately after the difficulty he met appellant, and at the time he met him, appellant's suspender was cut. If Red knows he met appellant, appellant also knew he met Red and that his suspender was cut; consequently he was in possession of facts that, to use diligence, he should, during the three years time, have made inquiry of this witness as to whether he saw this cut before they met. He was in possession of facts that required diligence on his part. For three years he knew that his defense was that deceased had assaulted and cut at him with his knife and cut his suspender; for three years. he had known that he met Mr. Red immediately after the difficulty, and ordinary prudence would have suggested to him to inquire of Mr. Red whether or not he saw this cut, yet, during all that time he made no such inquiry. In Carrico v. State, 36 Texas Crim. Rep., 618, it was held that a new trial will not be granted for newly discovered evidence which could have been discovered by the use of ordinary diligence. It has always been the rule in this State that the application must show that it was not owing to want of due diligence on the part of the defendant that it was not discovered, and did not come to his knowledge before the trial. West v. State, 2 Texas Crim. App., 209; White v. State, 10 Texas Crim. App., 167; Shaw v. State, 27 Texas, 750; Duval v. State, 8 Texas Crim. App., 370; Hutchinson v. State, 6 Texas Crim. App., 468; Fisher v. State, 30 Texas Crim. App., 502; Reagan v. State, 57 Texas Crim. Rep., 642; Cooper v. State, 58 Texas Crim. Rep., 598; La Flour v. State, 59 Texas Crim. Rep., 645; Turner v. State, 61 Texas

Crim. Rep., 97; Johnson v. State, 62 Texas Crim. Rep., 284; Wilson v. State, 63 Texas Crim. Rep., 81.

As said in Simms v. State, 1 Texas Crim. App., 627, in applications for a new trial on account of newly discovered evidence the allegations must at least have been sufficient to entitle one to a continuance, and should satisfy the court that the appellant had not been remiss in diligence. Several witnesses on this trial testify to seeing appellant shortly after the difficulty, and that his suspender was cut, so in a second or subsequent application for a continuance appellant, had he known this witness would testify as alleged, he could not have complied with the law in making application for a second continuance for he knew that Bob Edwards, B. Ladd, Bud Henson, and other witnesses were in attendance on court and would and did swear on the trial that appellant's suspender was cut as claimed by him.

As to the witness Jap Calvert, his testimony would be but cumulative of other testimony,-in fact, would be testimony as to a fact not disputed in the record,-that deceased owned a barlow knife.

We have given this case careful and thoughtful consideration on all the grounds in the motion for a new trial, and especially as to those grounds relating to the remarks of counsel for the State and the one alleging newly discovered evidence. There can be no question that the other grounds present no error. As to these two, after diligent inquiry, we have come to the conclusion that they present no ground under the decisions of this court for reversal of this case, and the judgment is affirmed.

Affirmed.

ON REHEARING.

December 23, 1914.

PRENDERGAST, PRESIDING JUDGE.-There is but one question necessary to be further discussed, all others, as raised in the record, were correctly decided in the original opinion. That question is whether or not appellant should have been permitted to have asked W. O. Odom, one of the State's witnesses, on cross-examination, and had him answer, that he was in favor of Mrs. Trevathan for county clerk, and went to Pollock the day of the election to work for her and against Mr. Ivy, her opponent, and that he was on the opposite side of that question from appellant, shown by his bills one and two. Appellant claimed this excluded evidence would have shown or tended to have shown that said witness had animus and bias against him, which accounted for his testimony so strong and pointed against him.

We have re-examined this question and the authorities applicable thereto, and have reached the conclusion said excluded testimony was material and the court erred in excluding it, which must result in the reversal of the judgment herein.

The trial judge in approving said bills qualified them by referring to the whole statement of facts herein, and particularly to said Odom's

evidence, and in the second also, that Odom testified "he went up to Pollock on other business." We have also carefully reread the whole record and statement of facts.

There is no question but that said Odom's testimony was more pointed, specific, positive, and stronger against appellant than the testimony of any other witness for either side, and especially on the sharply contested and contradictory points. Several eyewitnesses to the whole affair testified. Some of them were right with and at said Odom, and with fully equal opportunity to see and hear all that was said and done by appellant and deceased at the time of the killing, which he had,— others much closer than he, and with better opportunity to see and hear all.

It therefore became very important to appellant that he should have the right to prove any fact which would show or tend to show the hostility, animus or bias of this witness against him, so that the jury could properly weigh his testimony.

One of the main objects of sifting a witness on cross-examination is to show this. In the recent case of Roberts v. State, 74 Texas Crim. Rep., 150, 168 S. W. Rep., 100, we had occasion to review, and write on, this question rather fully. Therein we said, "every text-book writer on the subject, without any exception, holds that to show prejudice, bias, animus, hostility, or interest of any witness is strictly crossexamination." We also therein cited and quoted, as the law, what is said by 5 Jones on Ev., sec. 828, as follows:

"It is elementary law, supported by all authority, that the state of mind of a witness as to his bias or prejudice, his interests involved, his hostility or friendship toward the parties, are always proper matters for investigation, in order that truth may prevail and falsehood find its proper level. If the inner workings of a witness' mind are actuating his testimony, and the workings of that mind are brought forth to the light and held up in full view before the jury, results will be obtained much more in accord with truth and justice than though the witness' testimony is weighed and measured by his words alone. It is always competent to show that a witness is hostile to the party against whom he is called; that he has threatened revenge; or that a quarrel exists between them. A jury would scrutinize more closely and doubtingly the evidence of a hostile than that of an indifferent or friendly witness. Hence it is always competent to show the relations which exist between the witness and the party against, as well as the one for, whom he is called.' If the witness denies his hostility or bias, this may be proved by other witnesses. The cross-examination would be of little value if the witness could not be freely interrogated as to his motives, bias, and interest, or as to his conduct as connected with the parties, or the cause of action; and there would be little safety in judicial proceedings if an unscrupulous witness could conclude the adverse party by his statements denying his prejudice or interest in the controversy. And generally the moving circumstances which might impel the witness to swear falsely may form the subject of inquiry."