text:
    FLORES v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 17, 1913.
    Rehearing Denied Jan. 21, 1914.)
    1. Homicide (§ 190) — Evidence — Threats by Deceased against Accused.
    On a trial for homicide, threats by deceased to take accused’s life were properly admitted as tending to shed light on his actions; there being a sharp conflict as to who was the aggressor.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 399-413; Dec. Dig. § 190.]
    2. Homicide (§ 169) — Evidence—Showing Accused’s III Wide towards Deceased.
    On a trial for killing a deputy sheriff in a dispute growing out of the sheriff’s campaign for re-election, where there was a sharp conflict as to which party was the aggressor, and accused introduced proof that deceased had threatened to take his life, accused’s remarks shortly before the killing, showing ill will towards the sheriff and his deputies, and that accused was not afraid of them, were properly admitted.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. § 169.]
    3. Homicide (§ 188) — Evidence — Admissibility.
    Where-accused, for the purpose of showing that deceased, a deputy sheriff, was a violent and dangerous man, introduced testimony that on one occasion he assaulted a witness, the state was properly permitted to prove that the witness was drunk and disorderly, that deceased acted simply as an officer in trying to quiet him, and struck him only after he was assaulted by the witness.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 391-397; Dec. Dig. § 188.]
    4. Witnesses (§ 277) — Evidence—Res GES-TAE.
    On a trial for homicide, a question asked accused on cross-examination as to whether, immediately after the shooting, he did not remark, “The son of a bitch will die before I do,” was properly permitted, whether or not he was under arrest at the time, as it was res gestae.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. §§ 925, 979-983; Dec. Dig. § 277.]
    5. Witnesses (§ 277) — Evidence!—Admissibility.
    On a trial for killing a deputy sheriff in a dispute growing out of the sheriff’s campaign for re-election, cross-examination of accused as to his feelings towards the sheriff was properly permitted.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. §§ 925, 979-983; Dec. Dig. § 277.]
    6. Criminal Law (§ 730) — Error—Cure by Instructions to Disregard.
    Where a question was promptly withdrawn, when objection was made, and the court instructed the jury not to consider it for any purpose, there was no error.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. § 730.]
    7. Criminal Law (§ 1119) — Appeal—Hatters Presented for Review.
    Where a bill of exceptions, complaining of the court’s refusal to require the state’s counsel to let defendant’s counsel have a paper to which he referred while examining a witness, did not disclose what the paper was, nothing was presented for review.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2927-2930; Dec. Dig. § 1119.]
    8. Homicide (§ 188) — Evidence — Admissibility.
    On a trial for homicide, where witnesses were permitted to testify that they had altercations with deceased, that he offered to fight one of them and struck the other, the details of such altercations were properly excluded, as they would lengthen the trial unnecessarily.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 391-397; Dec. Dig. § 188.]
    9. Homicide, (§ 340) — Error — Cure by Verdict.
    Where accused was found guilty only of manslaughter, the failure to charge that an assault and battery would be adequate to reduce the homicide to manslaughter did not present error.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. § 340.]
    10. Criminal Law (§ 673) — Instructions— Limiting Effect of Impeaching Testimony.
    Where testimony can only be used to impeach, a witness, it is not necessary to give an instruction limiting its consideration.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1597, 1872-1876; Dec. Dig. § 673.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    F. G. Flores was convicted of manslaughter, and he appeals.
    Affirmed.
    Geo. S. Martin, Dwyer, Chambers & Watson, and J. R. Norton, all of San Antonio, for appellant. C. E. Lane, Asst. Atty. Gen., for tbe State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was convicted of manslaughter, and his punishment assessed at two years’ confinement in the penitentiary.

Tbe unfortunate killing apparently grew out of a heated political campaign. Sheriff Tobin was a candidate for re-election; deceased was one of his deputies and was supporting Mr. Tobin, while appellant was actively opposing the re-election of the sheriff. Defendant offered proof that deceased, because of this opposition, had made threats to take appellant’s life, which testimony was properly admitted. Yet when the state offered to prove by Mr. McCurdy remarks ,of appellant a few moments before the fatal encounter, which showed ill will towards the sheriff and his deputies, and that appellant was not afraid of them, defendant objects, and his first four bills of exception relate to this matter. Defendant’s own testimony shows that the difficulty arose over their political differences; he says that deceased said to him, “Flores, I would not like to have anything to do with you, because you are on the side of the cutthroats,” when appellant says he replied, “Well, I am not on the side of them thieves.” A. Wer-ner, a state’s witness, says he and Baird (deceased) went into the main bar and drank a beer and took a seat at one of the tables. That appellant came in and took a seat at the table next to him and deceased; that he,'witness, spoke to appellant, saying: “Hello, Feliciano, where have you been, I have not seen you in a long time; X thought you were dead.” “Then Ora Baird said, ‘O, you could not kill him, and after the election he is going to try to come back on our side.’ X was supporting John Tobin for sheriff at that time. Ora Baird was supporting Tobin. I could not swear it, but 1 think ’Flores was supporting the other 'side. When Baird said that, Flores said, ‘Don’t you never believe I am coming back on a thief like Tobin’s side;’ then Baird said, ‘Well, if Tobin is a thief, then George Huntress is, too;’ then Flores said, ‘You are a liar.’ Baird said, ‘You mistake me, but I say .that if John Tobin is a thief, Huntress is, too.’ A little preceding this Ora Baird was getting up. Baird got up first, and 1 got up directly afterwards. Then they two got pretty close together. What they done I don’t know. I was in the act of getting up myself, I had both my hands on the table. I got up shortly after Baird did and got hold of Flores. They both grabbed their guns at that time. I could not say who drew their gun first. I held Flores. I said, ‘Feliciano, cut this out; this is all foolishness; you have got a family, and you will regret this to-morrow; it don’t amount to anything.’ Flores says, ‘Turn me loose, go to your friends. Turn me loose.’ He said, ‘Turn me loose, God damn you, go join your friends.’ tie said,' ‘Get ready, get. ready.’ I don’t know how often he said .that, but he said it pretty often, anyhow often enough; anyhow it was none of my fight, and I got away and when I got away I guess about two steps, the shooting occurred. As to who shot first I could not say.” It is thus evident, whether we take the state’s or defendant’s theory of the qase, that the shooting arose out of this political campaign, and, as before stated, as it was proper to admit all threats of the deceased, for they would tend to shed light on his actions, yet it was also proper to prove the remarks of appellant about Tobin ánd his deputies, for such remarks would likewise aid the jury in passing on the facts introduced in evidence. There is a sharp conflict as to who began the difficulty, and who in fact first drew his pistol and fired — the state contending that appellant was the 'aggressor while defendant and his witnesses would make deceased the one who used the hostile language on this occasion and the provoking cause of the difficulty — and under such circumstances the jury was entitled to know all the facts leading up to and finally culminating in this homicide.

The reputation of deceased was also another sharply contested issue. Appellant introduced a number of witnesses who swore that deceased bore the reputation of being a violent and dangerous man; the state introduced witnesses who testified that deceased bore the reputation of being a peaceable and inoffensive man, and each side rigidly cross-examined the witnesses of the other side. The defendant on this issue introduced John English, who testified that on one occasion deceased assaulted him; that he was stooping over, unhitching his horse, when deceased came up behind and hit him in the head, and otherwise mistreated him; that he was not personally acquainted with Baird. On cross-examination he denied being drunk and disorderly, and that the trouble was over Officer Baird trying to quiet him, and that he, English, struck the first blow. The state was permitted to prove that English was drunk and disorderly on that occasion, and Mr. Baird was simply acting as an officer in trying to quiet him, when English struck Baird with an iron hook, and then and not until then did Baird strike him, and afterwards arrested him. As the defendant had offered this attack on English as evidence that deceased was a violent and dangerous man, one who assaulted unoffending citizens, it was permissible for the state to show, if it could be shown, that deceased was simply doing his duty as an officer, and did not strike English until he had been assaulted by him, and the bills presenting this matter show no error.

By another bill it is shown that on cross-examination of appellant he was asked that right after the shooting he did not make the remark, “The son of a bitch will die before I do.” The record does not disclose that appellant was then under arrest; but, if it did do so, the remark, whatever was made, was res’ gestas of the transaction, and the court did not err in permitting the question to be asked, nor in admitting the testimony. Neither, under the circumstances, was it erroneous to .permit appellant to be questioned in regard to feelings towards Sheriff Tobin. As to the question propounded to him in regard to Judge Shook, as it was promptly withdrawn when objection was made, and the court instructed the jury not to consider the question for any purpose, this does not present error.

Bill No. 11 states: “During the examination of the witness Dr. Sebastian Trevino he testified that he had been before the grand jury in this case. Counsel for the state held in his hand a document, and referred to it during the examination of the witness on this subject. After the state’s counsel had finished the examination of the witness, counsel for defendant moved the court to require the state’s counsel to let him have the list or paper which he had referred to. The court overruled the motion, stating that if the state should attempt to impeach the witness by any member of the grand jury, then he would permit defendant to have anything that the state had.” The bill does not disclose what the paper was, nor anything that was in the paper; there is nothing presented for review.

Several exceptions were reserved to argument of counsel for the state. As the court promptly sustained the objections, and gave the special charges requested by appellant in regard to these matters, the remarks are not of that character which would call for a reversal of the case.

The court did not err in refusing to permit the witnesses Roberts and Gillilan to go into detail about their troubles with deceased. They were permitted to state that they had had altercations with deceased; that he offered to fight Roberts, and had struck Gillilan, but to permit the details of these transactions to be gone into would lengthen a trial unnecessarily.

As appellant was found guilty of only manslaughter, and his punishment assessed at the lowest penalty, the complaint that the court in his charge did not tell the jury that an assault and battery would be adequate to reduce an offense to manslaughter presents no error. Had the appellant been found guilty of murder in either degree, his complaint that the charge did not appropriately instruct the jury in regard to this matter might present error; but, as before said, as appellant was only found guilty of manslaughter, a more specific charge as to the facts in evidence, could not, and would not, have been of any service.

The complaint that the charge of the court did not instruct the jury that they could only consider the fact that he had once before been convicted of a felony as affecting his credit as a witness is without merit, when the court gave this instruction at appellant’s request: “You are instructed that the evidence adduced from defendant on cross-examination whilst testifying that he had been charged and convicted for killing another man can only be considered by you as going to his credibility as a witness, and you will not consider same for any other purpose in arriving at a verdict herein.” The further complaint that he did not limit the testimony introduced solely for the purpose of impeaching witnesses presents no error.

In a number of cases this court has held that if the testimony can only be used to impeach a witness it is not necessary to charge on the subject at all. Branch’s Grim. Law, § S73.

The court on the issue of self-defense instructed the jury fully and fairly, and this portion of the charge is not subject to the criticisms contained in the motion for a new trial, nor was it necessary to give the special charge requested ■ by appellant on this issue, as the charge requested was sufficiently covered in the charge given.

Appellant’s counsel have filed an able and interesting brief, and we have given careful consideration to this record, but are of the opinion that no matter is presented in the motion for a new trial that should call for a reversal of the case. It is one of those unfortunate affairs that grows out of an intense political campaign,..but this whole record discloses that no matter who is. correct as to the beginning of the difficulty, that when it did arise, appellant entered into it with alacrity. The state’s witnesses say that appellant before any shot was fired exclaimed several times to deceased to “get ready, get ready;” and, while he says he did not use that language, but said instead, “If that is your game I am readyso according to the testimony offered in his behalf, it almost brings this case within the rules governing a mutual combat, and under such circumstances it would be immaterial who fired the first shot.

The judgment is affirmed.


source: Caselaw Access Project

author: HARPER, J.

license: Public Domain

text:
    COULTER v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1913.
    Rehearing Denied Jan. 21, 1914.)
    1. Criminal Law (§ 396) — Evidence—Admissibility.
    Under Code Cr. Proc. 1911, art. 811, providing that, when part of an act or declaration is given in evidence by' one party, the other party may inquire into the entire transaction, the state may inquire into the acts and statements of accused’s father, who had a quarrel with deceased only a short time before the killing, where the transaction was brought out by accused.
    [Ed. Note. — Enr other cases, see Criminal Law, Cent. Dig. §§ 861, 862; Dec. Dig. § 396.]
    2. Homicide (§ 169) — Evidence — Admissibility.
    Where accused killed deceased shortly after his father had had a quarrel with him, evidence of that difficulty and what was said by both parties is admissible; it appearing that it took place only a very short time before the fatal affray.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. § 169.]
    3. Criminal Law (§ 423) — Trial — Evidence.
    Where it was the theory of the state that accused and his father conspired to kill deceased owing to a difficulty between deceased and the father, evidence of the acts of the father during the shooting was admissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 989-1001; Dec. Dig. § 423.]
    4. Homicide (§ 15S) — Tbiai>-Evidenoe.
    Where accused claimed that he shot in self-defense and that he and deceased had been the best- of friends, evidence of his remarks and threats against deceased, made some time before the killing, was admissible; it being the contention of the state that accused and his father, who on the day of the killing had a quarrel with deceased, conspired together to kill him.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.]
    5. Homicide (§ 158) — Appeal-Harmless Er-bor.
    Evidence, on a prosecution for second-degree murder, of threats, was admissible, even though such evidence tended to show him guilty of murder in the first degree.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.]
    6. Criminal Law .(§ 814) — Trial—Instructions.
    Charges on threats by deceased and defense of property were properly refused; it not appearing that there were any such threats or that the killing was in defense of property.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. § 814.]
    7. Homicide (§ 300) — Trial—Instructions.
    Where self-defense was urged and accused claimed that deceased shot at him before he made any hostile demonstration, a charge limiting accused’s right to defend himself from actual attack begun or about to be begun was not erroneous.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. § 300.]
    8. Criminal Law (§ 814) — Trial—Circumstantial Evidence.
    Where the evidence for the state and for accused all showed that accused fired the fatal shot, an instruction on circumstantial evidence was unnecessary, even though it was the theory of the state that accused, in seeking the difficulty, had conspired with another.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860,1865, 18S3, 1890, 1924, 1979-1985, 1987; -Dec. Dig. § 814.’]
    9. Homicide (§ 39) — Manslaughter.
    To reduce the offense of murder to manslaughter, the killing must have been committed under the influence of a sudden transport of passion.
    [Ed. Note. — For other cases, see Homicde, Cent. Dig. §§ 59-61; Dec. Dig. § 39.]
    10. Homicide (§ 303) — Triai>-Instructions. Where accused claimed that, while he was
    shooting at some guineas, deceased opened fire on him, a charge on accused’s right to defend his father’s property and remove deceased from his land was unnecessary.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 635; Dec. Dig. § 303.]
    11. Homicide (§ 254) — Trial—Evidence.
    In a prosecution for murder, evidence held sufficient to warrant a conviction.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 533-538; Dec. Dig. § 254.]
    12. Criminal Law (§ 1064) — New Trial-Necessity.
    Errors not pointed out in the motion for new trial cannot be considered on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2676-2684; Dec. Dig. § 1064.]
    Appeal from District Court, San Augustine County; A. E. Davis, Judge.
    Raymond Coulter was convicted of murder in the second degree, and he appeals.
    Affirmed.
    Wm. MacDonald, of San Augustine, Geo. S. King, of Houston, and D. M. Short & Sons, of Center, for appellant. Blount & Strong, of Nacogdoches, and C. E. Lane,. Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

Appellant was convicted of murder in the second degree, and his punishment assessed at six years’ confinement in the penitentiary.

The evidence in this case shows that appellant’s father, Henson Coulter, and deceased, A. C. Lynch, were brothers-in-law; that some time prior to the homicide Lynch had leased a portion of the land of Henson Coulter and erected a mill thereon, the point where the mill was situate being outside of the inclosed land; that inside of the inclosed land a tank or pond was dug, and from this tank the mill secured its water by a pipe running under the fence. Henson Coulter and deceased were friends at this time, and owned a team jointly, which was driven by appellant. A month or more before the fatal difficulty, Henson Coulter and a man employed at the mill by Lynch named Ferguson had a difficulty, and Ferguson ceased to work at the mill. Shortly thereafter another hand employed by Lynch quit, and Lynch re-employed Ferguson. So far as this record discloses, this is when the friendly relations were first severed. According to the state’s testimony, after Lynch had reemployed Ferguson, appellant made several threats about what he was going to do (according to the testimony of Rufe Fitz), saying, among other things, “I am going to kill Uncle Arch (deceased) the first chance I get.” When Lynch re-employed Ferguson, appellant quit working for him. About a week before the homicide, and after Ferguson had been re-employed by Lynch, Henson Coulter nailed up a gate in the fence near the mill of deceased; this being the only entrance into the pasture on that line of fence. Mr. Coulter assigns as a reason for nailing up the gate that he did so to prevent stock from getting out. A few days after the father of this appellant had nailed up this gate, Lynch (deceased) made another gate in the fence near the mill. On the day of the difficulty Henson Coulter was informed that Lynch had put in this gate, and went down and nailed it up also. He returned by the mill and informed deceased that he had nailed the gate up; he having in his hand at this time the iron pin he had used in nailing up the gate. When he informed Lynch that he had nailed the gate up, Lynch picked up a hand axe and advanced towards Henson Coulter and caught him by the shoulder. Words ensued, as regards which there are different versions, but it may be said that deceased cursed Henson Coulter, and informed him that he would again open the gate, and he did do so. The state’s witnesses say that Henson Coulter remarked as he left that he would he back down there directly.

After Henson Coulter left, John Green came to the mill to get some oilthe pump ■being in an outhouse near Henson Coulter’s residence. John McBride and deceased went up there to get the pump, and while McBride was getting the pump out of the house two or three shots were fired by Raymond Coulter, appellant, as he says, at some guineas, the state’s contention being that the shots were fired at deceased, and that the third shot knocked up the dust near deceased’s feet. There is no contention that at the time these shots were fired deceased had said or done anything; but it is shown that, when the shots were fired in the lot, deceased began to curse, and called on those in the lot to come out and he would fight it out with them, using very opprobrious epithets.

The state’s testimony would show that when two shots were fired in the lot deceased ■called on them to come out and fight it out; that a third shot was fired, knocking the ■dirt up near deceased’s feet; and that it ■was at this time he drew his pistol, when two more shots were fired, and he fell; that deceased fired no shot.

Appellant contends that the first shots v\'ere fired at some guineas, and he did not know that Lynch was near until Lynch began to curse; that he then saw Lynch, who had a pistol in his hand, and who immediately fired in the direction of those in the lot. Appellant says he then jumped behind a tree, and he and Lynch fired almost simultaneously, when Lynch fell.

Appellant and his witnesses contend they were on the way to the field to go to work, and appellant carried the pistol to kill some dogs. The state’s contention is that, when Henson Coulter returned home from the gin, he and his two sons, Raymond and Henry Coulter, and two others, had started back to the mill armed, and fired when they saw Lynch, continuing to shoot until they killed him. Appellant’s theory is • that he knew nothing of the difficulty at the gin; that he had started to work, fired innocently at some guineas, not knowing that Lynch was near; that when he did so Lynch cursed, drew a pistol, and fired at them; that he then drew his pistol, and he and Lynch both fired.

In one of appellant’s bills of exception it is contended that the court erred in permitting witness to testify that after the altercation at the gin, when Henson Coulter left he said “he would be back down there ■directly.” The record discloses that, when the state offered in testimony this difficulty at the gin, it was excluded upon objection ■of the defendant. On cross-examination of the witness McBride, the defendant had him testify to all that was said and done by deceased Lynch at that time, when upon redirect examination the state was permitted to prove what Henson Coulter said and did. Article 811 of the Code of Criminal Proceduce, provides, when part of an act or declaration is given in evidence by one party, the whole on the same subject may be inquired into by the other party. Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 215. When appellant brought out the fact that his father had a difficulty at the mill with deceased, and the acts, words, and'conduct of deceased at that time, then the whole conversation became admissible.

But we think the testimony was admissible as shedding light on the subsequent transaction. If appellant’s father had not gone to the mill and nailed up the gate and went to the mill and informed deceased of that fact, when the first altercation took place, there certainly would have been no other difficulty that day. The second difficulty was but an outgrowth of the first, in whatever light we may view the matter. According to the state’s theory, this was the reason that appellant and his brother armed themselves, and in company with his father and others went in the direction of the mill to renew the difficulty; according to the defendant’s theory this was the reason, when appellant, as ho says, innocently fired at the guineas, why deceased began to curse and abuse them and fired his pistol in the direction of him and his father. So, according to either theory of the case, this prior difficulty- would shed light on the subsequent transaction. And especially would this be true when appellant first injected it into the case.

Henson Coulter, Henry Coulter, and appellant were all indicted charged with this offense. The record shows that Henson Coulter (the father) had been tried and acquitted, and Henry Coulter had been tried and convicted of manslaughter prior to the tiral of appellant. Upon this trial the state was permitted to prove that, while the shooting was taking place or just prior thereto, a witness says he saw Henson Coulter motioning with his hands towards the place where deceased was situate. The fact that Henson Coulter had been tried and acquitted would not render this testimony inadmissible. Although he had been acquitted, it would have been permissible for the state to show on the trial of this defendant that a conspiracy existed, if it could do so. The defendant’s theory was that deceased was angry because Henson Coulter had nailed up the gate, and, because of the prior difficulty, came up towards their home and shot at •them without a just provocation by reason of these facts, while the state’s theory was that a conspiracy existed between appellant, his father, and brother Henry to take the life of deceased, because of deceased’s act at the gin. Upon such a state of case, the acts, words, and conduct of each of the parties are admissible in evidence, and the court did not err in so holding.

During the trial, Elma Holt was permitted to testify: “The conversation came up about a hand Mr. Lynch had employed by the name of Tom Eerguson. I ashed if ■Ferguson was still there, and Raymond replied : ‘Yes, but he says, by God I am going to put him away from there.’ I said, ‘Why?’ and he said, T am not going to allow him to stay there.’ And I said, Well, why?’ and he said: ‘Him or Arch Lynch, one would have to leave there. They are not both going to work there. I am going to get revenge out of him.’ ” Mrs. Élma Holt was permitted to testify that about, two weeks before the killing,, in p. conversation, about Arch Lynch, appellant ■ said that “whenever the mill dam washed away, if Arch Lynch took his crew and put it back, he intended to take his gun and shoot as long as there was one of his crew.”

Rufe Fitz was permitted to testify that prior to the killing he was talking to appellant, and something was said about Arch Lynch, deceased, when appellant said, “I am going to kill Uncle Arch, (meaning deceased) the first good chance I get.” All this testimony was objected to on sundry and various grounds. Appellant testified that he and his Uncle Arch “were as good friends as anybody in the community,” and, if this were true, it would strengthen his contention that he had no other cause to shoot his uncle except to save his own life as testified to by him; consequently the above statement would be admissible on the issue of whether or not they were good friends as contended by appellant. Again, it was a closely contested issue as to who began the difficulty at the time of the fatal encounter. The state was contending, that deceased never fired a shot and neyer drew his pistol until he had been shot at three times. Appellant’s contention was that he did not shoot at deceased the first two or three shots, but shot at some guineas, when his Uncle Arch commenced to curse and abuse him, and those with him, and fired at them, when he .returned the shot. Under such circumstances prior statements in their nature showing intense ill will are admissible to aid the jury in determining who in fact began the difficulty. McKinney v. State, 8 Tex. App. 626; Anderson v. State, 15 Tex. App. 447; Frizzell v. State, 30 Tex. Cr. App. 55, 16 S. W. 751; Bolton v. State, 39 S. W. 672; Bishop’s New Crim. Proc. § 1110, and cases there cited.

The contention of appellant that these threats would tend to show express malice ■ and render him guilty, if guilty at all, of ■murder in'the first degree, is without merit. Although appellant was only on trial charged with murder in the second degree, yet all evidence tending to show that he was guilty ■of murder would be admissible, although it might tend to show that he was guilty of a ! graver degree of that offense than the state had elected tq, prosecute him for.

Several special charges were requested by appellant — the first in regard to threats by deceased. There is no evidence in the record that deceased made any threats towards appellant, his father, brother, or any other persqn other than the language used at the time of the fatal difficulty. Under such circumstances, the court did not err in refusing the first special charge requested.

Neither was there any evidence calling for or requiring a charge on defense of property, and the principles embraced in the other special charges, in so far as they are the law of the case, were fully presented by the court in the charge given.

The contention that the court erred in limiting appellant’s right to defend from an actual attack is without merit. The language of the charge, “had made or was about to make an attack,” was peculiarly applicable to the facts in this case.. There is no testimony of antecedent threats; and all the testimony offered in behalf of defendant would show that deceased actually shot at him before he did anything towards harm of deceased. The' state’s testimony is that appellant shot at deceased before he did anything justifying him in so doing. If deceased was in or near the public road, cursing and abusing appellant and those with him, this fact alone would not authorize appellant to kill him. Deceased must have been guilty of some act leading appellant to believe his life was in danger before he would be authorized to shoot.

While in the brief there are several complaints of those paragraphs of the charge defining and submitting the issue of murder in the second degree, in the motion for new trial complaint is only made of the following paragraph: “Now bearing in mind all the foregoing instructions, if you believe from the evidence beyond a reasonable doubt that Raymond Coulter, either alone or acting as a principal with Henry Coulter as that term has heretofore been defined to you, in the county of San Augustine, state of Texas, on or about the 24th day of May, A. D. 1911, with a deadly weapon did shoot and thereby kill Arch Lynch, and you further believe beyond a reasonable doubt that said killing was committed with implied malice aforethought,' and was not in defense of himself or any other person then in the lot, agáinst an unlawful attack or threatened attack, .which created in his mind a reasonable apprehension or fear of death or serious bodily injury to himself or some other person then in the lot, and not under the immediate influence of sudden passion, arising from an adequate cause, as that term has heretofore been explained to you, you will find the defendant, Raymond Coulter, guilty of murder in the second degree.” ' The complaint of this paragraph is that as the evidence is eircum-stantial, going to show appellant and Henry Coulter acted together in the commission of the offense, the court should have charged on circumstantial evidence on this phase of the case. The evidence for the state and the appellant all goes to show that appellant fired the fatal shot. Appellant himself testified that he fired the shot that killed deceased, and this paragraph submitted only whether he shot, and did not authorize a conviction on account of any act of Henry Coulter. Under such circumstances, it was not necessary to charge on circumstantial evidence.

After defining manslaughter in a way not complained of in the motion for new trial, the court instructed the jury: “If you believe from the evidence beyond a reasonable doubt that Raymond Coulter with a deadly weapon in a sudden transport of passion aroused by adequate cause, as same is herein explained to you, and not in defense of himself or some other person then in the lot, against an unlawful attack which created in his mind a reasonable expectation or fear of death or serious bodily injury to himself or some other person then in the lot, did, in San Augustine county, state of Texas, on or about the 24th day of May, A. D. 1911, shoot and thereby kill Arch Lynch, you will find the defendant, Raymond Coulter, guilty of manslaughter.” This paragraph is complained of in several particulars by appellant. The first is that it required the killing to have been committed under the influence of a “sudden transport of passion” before the jury would be authorized to reduce the offense to manslaughter. This contention has been before this court so frequently we do not deem it necessary to discuss it. While in some of the eases appellant’s contention has been sustained, they were overruled a number of years ago, and this has been held to place no undue burden on the defendant. Especially would this be true under the evidence in this case.

The second complaint is that the paragraph limits appellant’s right to defend against an unlawful attack, whereas he was entitled to defend against the appearances of danger. If the evidence disclosed “appearance of danger” without showing an actual attack, there might be merit in the contention; but, as hereinbefore stated, the defendant’s testimony would show an actual attack, a shot with a pistol, while the state’s testimony would show not even the semblance of danger until a shot was fired which knocked up the dirt near the deceased’s feet.

The complaint that the court’s charge on self-defense ignored appellant’s right to remove deceased from the premises is without merit, as there is no testimony raising that issue. If, as appellant contends he fired at some guineas, when deceased began to curse and abuse him and those with him in the presence of his mother, and then shot at him, this would be evidence of a right to defend his person but not his property. It might be admissible and perhaps should be considered in passing on the grade of homicide, but if deceased cursed and used highly insulting language in the presence of his mother, before he would be authorized to kill, the evidence must show that all other reasonable means were resorted to to eject him from the premises before he would be authorized to inflict injury on that account. In this case there is no suggestion that any effort was made to eject deceased from the premises; but, whether his contention or the state’s contention presents the correct theory, the only issue presented by the evidence was the right to defend from actual attack.

As to that portion of the charge limiting appellant’s right to defend, there is no com-. plaint that this paragraph is in and of itself erroneous, but it is insisted that the court should not have submitted that issue. The state’s contention is that two shots were fired at deceased before he said a word; that a third shot was fired at him before he drew or attempted to draw a weapon. While it is true that the testimony offered in behalf of the defendant denies all this, yet this testimony presented the issue, and the court acted properly in submitting it to the jury for their determination.

As hereinbefore stated, it was not necessary to charge on circumstantial evidence in connection with this case. It was shown beyond all doubt that appellant fired the fatal shot; he admits it, and the court in his charge properly defined who are principals in the commission of an offense, and in a way not complaified of by appellant. Under such circumstances, when the person on trial admits firing the fatal shot, it is not necessary to charge on circumstantial evidence, even though the evidence going to show the guilt of another as a principal might be established by circumstantial evidence only. If Henry Coulter was on trial under this evidence, then there would be merit in. appellant’s reasoning and contention. But the person on trial is shown to have, and admits he, killed deceased, and no charge on circumstantial evidence was required.

The evidence in this case sharply conflicts. Under that offered by defendant, if accepted by the jury, he would have been justifiable in slaying the deceased. But the testimony for the state which evidently was accepted by the jury as presenting the true version of the difficulty fully supports a conviction for murder in the second degree. The court fairly submits the issues raised by the testimony, and in a way very favorable to defendant.

In the motion for new trial no error is pointed out, and those questions presented in the brief having no basis in the motion for new trial cannot be considered by us, and for tbis reason we have not discussed them.

Tbe judgment is affirmed.


text:
    LAWLESS v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.)
    1. Criminal Law (§ 1043*) — Appeal — Evidence-Review.
    An objection that tbe evidence is insufficient to sustain a conviction presents for review on appeal only tbe question whether there is any evidence in the record which will justify the verdict.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2654, 2655; Dec. Dig. § 1043.*]
    2. Weapons (§ 17*) — Carrying a Pistol — Evidence.
    In a prosecution for unlawfully carrying a pistol, evidence held to sustain a conviction.
    [Ed. Note. — Eor other eases, see Weapons, Cent. Dig. §§ 20, 22-33; Dee. Dig. § 17.*]
    Appeal from Panola County Court; W. R. Anderson, Judge.
    Donnie Lawless was convicted of unlawfully carrying a pistol, and be appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for tbe State.
   HARPER, J.

Appellant was convicted of unlawfully carrying a pistol. He admits having tbe pistol on the occasion charged, but bis defense is that tbe pistol bad no cylinder and could not be shot. He supports tbis by tbe testimony of several witnesses who testify to seeing him at several different places with a pistol with no cylinder in it. He was tried before tbe court, having waived a jury. Tbe question before us is, is there any testimony in tbe record which would justify tbe verdict, not what we would have found bad we been tbe trial court? The only assignment of error is tbe insufficiency of tbe testimony to sustain tbe verdict. George Yates testified: “I know the defendant, Donnie Lawless; have known him several years. I saw tbe defendant in tbe town of Deberry on tbe 6th day of July, 1913. He and Clayton Lawless drove up in a buggy and stopped in front of my store. I went out to tbe buggy and while standing near tbe buggy I saw tbe defendant, Donnie Lawless, reach down in the foot of tbe buggy, took a pistol from a scabbard and unloaded it, extracting shells therefrom. It was a blue pistol, like tbe one you have there.” On cross-examination be testified that be knew there was a cylinder in tbe pistol when be saw it. Tbis would authorize tbe court to find tbe verdict be did find. Tbe trial court saw and beard tbe witnesses, and be is more capable of passing on tbe credit to be given tbe testimony of each of them than we are at tbis distance.

The judgment is affirmed.


author: DAVIDSON, J.

text:
    KING v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.)
    1. Criminal Law (§ 1099) — Appeal—Statements oe Facts.
    A purported statement of facts made up entirely of questions and answers, and not approved either by counsel or the trial judge, though certified to be correct by the official stenographer, cannot be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2866-2880; Dec. Dig. § 1099.]
    2. Criminal Law (§ 982) — Suspension oe Sentence.
    Where the jury found accused’s previous good character, and that he had not been previously convicted of a felony, but did not recommend that the execution of the judgment be suspended, tbe court could not suspend such execution.
    TEd. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 2500, 2501; Dec. Dig. § 982.]
    3. Constitutional Law (§ 74) — Criminal Law (§ 978*) — Judicial Power — Encroachment on Executive Power — Suspension of Sentence.
    Acts 33d Leg. c. 7, providing for the suspension of sentence in certain cases upon recommendation of the jury, is valid, since there is a broad distinction between tbe suspension of sentence which would interfere with the pardoning power and the suspension of the judgment or its execution by preventing the passing of sentence which does not interfere with such power, as that power does not attach or become operative until after tbe final judgment or sentence.
    [Ed. Note. — Eor other cases, see Constitutional Law, Cent. Dig. § 124; Dec. Dig. § 74; Criminali'Law, Cent. Dig. §§ 2484, 2485, 2487; Dec. Dig. § 978.]
    Appeal from District Court, Howard County; W. W. Beall, Judge.
    W. T. King was convicted of assault to murder, and be appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for tbe State.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, J.

Appellant was convicted of assault to murder; his punishment being assessed at three years’ confinement in tbe penitentiary.

There is what purports to be a statement of facts accompanying tbe transcript; it is certified by tbe official stenographer of tbe district court to be correct. It seems in its entirety to be made up by questions and answers and further it may be noted that tbe statement of facts is not approved either by counsel or by tbe trial court. Being in this condition tbis court cannot consider it as a statement of facts.

Appellant moved the court to submit the question of bis former good character, and tbe fact that he bad not been previously convicted of a felony, as a predicate for a recommendation of tbe suspension of tbe execution of tbe judgment against him. Tbe court submitted it to tbe jury, and they found previous good character, and that be bad not been previously convicted of a felony, but failed to recommend in the verdict that the execution of the judgment be suspended. This ruling of the court appellant contends was error. In Roberts v. State, 15S S. W. 1003, which was followed by Potter v. State, in 159 S. W. 846, this court held it was necessary for the jury to recommend the suspension of the execution of the judgment as a prerequisite to such suspension. We have seen no reason to change the conclusion reached in those cases. This is a legislative matter, and that body provided that the verdict should so specify. We think it was within the legislative power to make this provision, and that, in reaching this conclusion, we are not antagonistic to nor out •of harmony with the opinions in .the Snod-grass Cases. Acts 33d Legislature, p. 8, is based upon an entirely different theory ■and proposition from the previous suspended sentence act. There is a broad distinction recognized by the law and the decisions between the suspension of the sentence and that which suspends the judgment or its execution or which intervenes and prevents the passing of the sentence. The first would interfere with the pardoning power; the other may not, inasmuch as the pardoning power does not attach or become operative until after the final judgment or sentence.

The other questions presented cannot be .revised in the absence of a statement of facts. As the record is presented to us, the judgment will be affirmed.


author: DAYIDSON, J.

text:
    NEWSOME v. STATE.
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1914.)
    Criminal Law (§§ 1092, 1099*) — Appeal-Statement on? Facts — Bill op Exceptions —Piling—Time.
    Where appellant’s statement of facts and bills of exception were not filed within 20 days after adjournment of court, they were too late, and could not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2829, 2834^-2861, 2S66-28S0, 2919; Dec. Dig. §§ 1092, 1099.*]
    Appeal from Wichita County Court; C. B. Felder, Judge.
    John Newsome was convicted of aggravated assault, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
   DAYIDSON, J.

Appellant was convicted of an aggravated assault; his punishment being assessed at a fine of $500.

The statement of facts and bills of exception were filed more than 20 days after adjournment of court. The Assistant Attorney General calls the attention of the court to the fact that the statement of facts was filed too late; that under the decisions it was necessary that the evidence be filed before the expiration of 20 days in order to be considered. Under the decisions of this court this proposition is well taken, and must be sustained. The writer, however, is of the opinion that, since the enactment of the Revised Statutes of 1911, as well as under the act of 1911, the general session acts, the accused is allowed 30 days, even without an an order for that purpose. The majority of the court, however, does not agree with that proposition as being correct. Without the statement of facts there is nothing this court can consider.

The judgment therefore will be affirmed.