author: HARPER, J.

text:
    WARD v. STATE.
    (No. 3826.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.)
    1. Homicide <@=>169 — Evidence — Circumstances — Premeditation—Explanation oe Acts — Admissibility.
    Where the prosecution has introduced evidence. of circumstances that defendant was carrying a gun, and passed deceased’s house, and later returned, and while there killed him, for the purpose of showing premeditation, it is error to exclude defendant’s explanation by his own and other testimony of such circumstances.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. <@=>169.]
    2., Homicide <@=>169 — Self-Deeense—Acts oe Deceased — Admissibility.
    Where defendant, accused of murder, alleged self-defense, it was error to exclude evidence of statements of deceased that accused “had better not come back to T. county,” since they would tend to show a state of deceased’s mind moving him to attack accused, and thus substantiate the defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 341-350; Dec. Dig. <@=>169.]
    3. Homicide <@=>300 — Trial—Instructions— Relative Strength oe Deceased and Accused.
    Though evidence of disparity in size and strength of deceased and accused, who claims self-defense, is meager, an instruction to the' jury “to take into consideration the relative strength of the parties, and defendant’s knowledge of the character and disposition of the deceased,” is not error.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig. <@=>300.]
    Appeal from District Court, Titus County; J. A. Ward, Judge.

      Elmer Ward was convicted of murder, and lie appeals.
    Reversed and remanded.
    S. P. Pounders and J. M. Burford, both of Mount Pleasant, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of murder, and Ms punishment assessed at five years’ confinement in the state penitentiary.

Appellant and Miss Maud Taylor were married some ten years ago, and had one child living, about five years old. In the fall of 1913 they'moved from Titus county to Oklahoma, and appellant made a crop in Oklahoma in 1914. In January, 1915, they decided to return to Titus county, but not having money enough to pay railroad fare, and freight on their household articles, it was decided that Mrs. Ward and child return, and appellant remain in Oklahoma until he could ship his household goods. Mrs. Ward, upon her return, went to the home of appellant’s father, her father being some four miles distant. In February appellant decided to come on to Texas, leaving his household goods in Oklahoma, he saying he had not earned sufficient money to pay the freight. According to all the testimony he and his wife lived together at Ms father’s until the latter part of March, when appellant left his father’s home to go in search of work, as he says. Just about the time he left, Ms wife went to her father’s home, and shortly thereafter came and got her trunk. Evidently she intended this for a separation, although appellant says he was not made aware of such fact until he received a letter from his wife after his return to Oklahoma. Appellant did not return to Titus county until some two or three weeks before the homicide, which occurred July 24, 1915. It appears that after her return to the home of her father she went to work to support herself and child, chopping cotton for her father and their neighbors, and doing other character of work that she could find to do. Among others for whom she worked was deceased, a near neighbor. Appellant says he was not aware of this at the time of the homicide, yet he introduced evidence of it on this trial, apparently to throw light on what he says occurred at the time of the homicide. 1-Ie states that during the week of the homicida he had been at work for Will Stout, who married his sister. That during the week he met Bud Brantley, who had married a sister of appellant’s wife, and asked Brantley to try and persuade his (appellant’s) wife to return and live with him. That Brantley told him to come and see his wife; that she could have more influence over appellant’s wife than he, Brantley, could. Appellant gives this as a reason for going to Brantley’s house on Friday afternoon, passing by the house of Bud Merrett, deceased. He carried a shotgun with him, and he says the reason he did so, was that he intended going squirrel hunting with Brantley’s son, but he was not at home, .and says he told Brantley when he borrowed the gun. After he so testified, he desired to prove by Brantley that he, Brantley, had invited him to his house, that appellant might get Mrs. Brantley to intercede with his wife, and also desired to prove by Stout that when he borrowed the gun he told him he wanted it to go squirrel hunting with Brantley’s son. The record discloses that the shells he carried with him contained only squirrel shot. The state relied on the fact that appellant went by Merrett’s Friday evening with a shotgun; came back by there next morning with this gun in his hands, and finally came to where deceased was plowing, and killed him with this gun, as a circumstance tending to show predetermined intention to kill. As the state introduced this evidence to show a predetermination to kill, on the issue of malice, there can be no question appellant had a right to explain his movements and actions, consistent with his innocence, and we think had a right to support such testimony by the testimony of Brantley and Stout. The jury might infer, and doubtless the state would insist that this explanation was an afterthought, and the fact he had told Stout why he was going to Brantley’s, before the homicide, and why he desired the gun to take along with him, and the further fact that Brantley had invited him to come to Ms house to get Mrs. Brant-ley to intercede for him with Ms, appellant’s wife, and that was his mission at his, Brant-ley’s, home, would have a tendency to sustain appellant’s contention and testimony that there was no predetermination to kill, but the cause of the killing arose solely at the time of the difficulty, as contended by appellant. The court erred in excluding tMs testimony. Branch, in his work on Criminal Daw, lays down the following rules, citing the authorities mentioned: If the state' proves that defendant went to a place where an offense was committed, defendant may prove acts and conversations explaining the visit. Jackson v. State, 55 Tex. Cr. R. 85, 115 S. W. 262, 131 Am. St. Rep. 792; Johnson v. State, 29 Tex. App. 153, 15 S. W. 647. When evidence of an act done is put in evidence by the state, defendant may prove acts and declarations made at the time, having a tendency to explain or give character to the act. Davis v. State, 3 Tex. App. 99; Epson v. State, 29 Tex. App. 607, 16 S. W. 780; Lancaster v. State, 36 Tex. Cr. R. 18, 35 S. W. 165; Radford v. State, 33 Tex. Cr. R. 526, 27 S. W. 143. And the explanatory act, declaration, or statement is not restricted to the time when the act, declaration, or statement occurred, but our statute extends the rule so as to render such explanatory act or declaration admissible, if necessary, to a full understanding of, or to explain the acts, etc., introduced in evidence by the adverse party, although the same may have transpired at a different time, and at a time so remote as not to be admissible as res gestee. Pratt v. State, 53 Tex. Cr. R. 285, 109 S. W. 138; Potts v. State, 56 Tex. Cr. R. 47, 118 S. W. 535; Rogers v. State, 26 Tex. App. 430, 9 S. W. 762; Harrison v. State, 20 Tex. App. 398, 54 Am. Rep. 529; Sigler v. State, 7 Tex. App. 284.

Appellant says: In returning to Stout’s on the morning of the homicide, he passed Merrett’s, and saw Merrett, deceased, and J. L. Townsend. That he went to the house of his father-in-law, J. L. Taylor, and talked with his wife and boy. That upon leaving to go to Stout’s, the road passed within about 100 yards of where deceased Merrett was plowing. 'He says Merrett called him, and he went to where Merrett was at work, and then he testifies that the following conversation occurred:

“We talked in a friendly manner. Then he asked me about the crops and where I had been and such talk as that and we talked about 15 minutes, or something like that; I don’t know just how long. At the time we were talking Bud Merrett was on the inside of the fence and I was on the outside, and we were about even. I was standing off, I reckon 7 or 8 feet from the fence may be and he was on the inside. Finally he walked down towards his horse 5 or 6 steps and he said something about his cotton, and I walked up and looked at the cotton. Of course we were not standing right in the same place all the time. Finally my wife — he calls her Bubber — he says, ‘How did you and Bubber come out?’ That is just what he asked me. I asked him what he meant and he said T mean does she talk like she is going to live with you any more?’ I told him I didn’t know that it was any of his business, that it looked like it was our affair; I said it looked like it was our affair about that and I told him I never asked nothing about it this morning and we never had any conversation about it, but from what she said about her things I did not suppose she was, because she had asked me to bring the things down that evening to Mr. Taylor’s. He said, *1 can tell.you one thing, she will never live with you any more.’ He said, ‘You will be a blamed fool to want her to, because she don’t care a blame thing for you.’ I said, ‘You seem to know a whole lot about this.’ He said, T expect I know more than you think.’ I said I knew now why my wife had done like she had, that he was the cause off it, and I told him ‘You ruined one woman in this country and now you are trying to ruin mine.’ He was standing five or six feet below the fence. He had had his knife in his hand some little bit. When I told him that he said I was a damned liar; he said, ‘You cowardly son of a bitch,’ and struck at me with his knife, and I jumped back from the fence and fired without putting my gun to my shoulder at all.”

Appellant was the only eyewitness as to what occurred immediately preceding the homicide, the state relying on circumstantial evidence to show the difficulty did not occur as detailed by appellant, and without reciting the various circumstances introduced by the state, we will say they were amply sufficient to support a verdict of guilty, if the jury took the state’s view of the transaction.

We have recited the testimony of appellant, because it becomes necessary in passing on two bills of exception to the ex-elusion of testimony. Appellant, after so testifying on the issue of who began the'difficulty, desired to prove by Paris Corn and Ed Scarborough that shortly before the difficulty, and just before his return to Titus county, they had a conversation with deceased Mer-rett, and Merrett asked them if they knew where appellant was, and they answered he was in Oklahoma, and deceased then said, .“How do you know he is in Oklahoma?” to which witnesses answered, “Because I have just gotten a post card from him.” That deceased then said, “Well, if he is in Oklahoma, he had better stay there, and he had better never come back to Titus county.” The state was relying upon the fact that appellant was mad or angry because his wife had been working for Merrett, who was a widower, and thought Merrett was trying to take his wife away from him; that Merrett had not called appellant, but appellant had passed the house the evening before with a gun looking for Merrett; had passed there that morning, with his gun in both hands, but did not use it because of Townsend’s presence; that appellant had gone back there after Townsend left and shot deceased while he was standing near a post, whittling on it, inside of the fence; that deceased was never nearer than 10 or 15 feet of appellant, who was on the outside of the fence in the road. Appellant was contending that he was standing against the fence, deceased being some feet inside, when the conversation above recited took place, and that deceased rushed at him and cut at him with his knife, when he stepped back and shot. Thus it is seen the testimony of Com and Scarborough, although not known to appellant, would be of aid to the jury in determining whether the theory of the state’ or defendant was correct — at least would have a tendency to support appellant’s contention — putting deceased in that state of mind where he might probably commit the acts appellant said he did commit. We are of the opinion the court erred in excluding this testimony.

Appellant also contends the court erred in his charge on self-defense in instructing the jury “to take into consideration the relative strength of the parties, and defendant’s knowledge of the character and disposition of the deceased.” This is a charge usually given in behalf of a defendant, when there is evidence as to these matters in the record. As defendant had testified that he was sick, and had been sick for some time, and unable to work, and was otherwise physically in bad condition, and the size and weight of deceased had been proven, this in and of itself, under this record, would not 'present reversible error. But as the evidence of any disparity in the size of the men is rather meager, and there is no evidence of the character and disposition of the deceased, on another trial this part of the charge on self-defense will be omitted, if defendant so requests.

There are a number of .other hills of exception in the record, and we have carefully reviewed each of them, hut they and none of them present any error in the ruling of the court.

The judgment is reversed, and the cause remanded.
      <S=sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, J.

license: Public Domain

text:
    TAYLOR v. STATE.
    (No. 3655.)
    (Court of Criminal Appeals of Texas.
    Oct. 27, 1915.
    On Motion for Rehearing, Dec. 1, 1915.)
    1. Criminal Law <©=1183 — SENTENCE—INDETERMINATE SENTENCE— CORRECTION.
    Where the verdict of the jury in a prosecution for murder was for confinement for 10 years in the penitentiary, while the statute requires the sentence to be indeterminate, the Court of Criminal Appeals may reform the sentence to conform with the statute.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3195-319S; Déc.'Dig. <©=> 1183.]
    2. Criminal Law <©=>1120 — Appeal—Bill or Exceptions — Definiteness.
    A bill of exceptions, on appeal from a conviction of murder which is directed at the examination of a witness, but which fails to show his answers will not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. <©= 1120.]
    3. Witnesses <©=>240 — Examination—Lead-ins Question.
    Where the district attorney, in a prosecution for murder, asked a witness to state whether or not deceased stopped before he was killed after he had been running, the question was not leading.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 837-839, 841-845; Dec. Dig. <§=>240.]
    4. Witnesses <©=>240 — Examination—Lead-ins Question.
    In a prosecution for murder, where the district attorney asked a witness to state whether or not he saw deceased and defendant all the time until deceased was killed, the question was not a leading question, and was admissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 837-839, 841-845; Dee. Dig. <§=>240.]
    5. Witnesses <©=>389 — Impeachment.
    In a prosecution' for homicide, a witness cannot be compelled to say what her testimony was on the habeas corpus trial, where she states that she does not remember.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1243-1245; Dec. Dig.' <©=>389.]
    6. Homicide <©=>166 — Evidence—Motive.
    A statement, made by the defendant in a prosecution for murder, that a person convicted of having killed one of decedent’s family was “worth the whole damn N. family,” the person defendant was charged with having killed being of that, family, is admissible to show his attitude toward that family and possible motivé in committing the offense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. <§=>166.]
    7. Homicide <©=>166 — Evidence—Admissibility..
    Where it appeared that defendant, in a prosecution for murder, was interested in another person, previously convicted of murder, in whose trial the person ho was charged'with having killed was active, evidence of that trial and conviction, and the activity of the deceased, was admissible to show a possible motive of the defendant in committing the offense charged.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. <§=>166.]
    8. Witnesses <©=>393 —Contradiction —Inconsistent Statements — Testimony at Prior Trial.
    In a prosecution for murder, where it is sought to introduce, to contradict a witness, evidence of his testimony at a former trial, that testimony need not have been reduced to writing or sworn to, if it can be otherwise proved.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1252-1257; Dec. Dig. <©=>393.]
    9. Criminal Law <©=>1120 — Appeal—Bill of Exceptions — Preservation of Exceptions —Definiteness.
    Where the bill of exceptions does not show the grounds of objection to evidence excluded by the trial court or the purpose for which the testimony was sought, it wifi, not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. <©=> 1120.]
    10. Criminal Law <§=>1091 — Appeal — Bill of Exceptions — Definiteness.
    Where the bill of exceptions, on appeal from a conviction of murder, used the pronouns “he” and “him” without identifying the person meant, and failed to give the answer of the witness to questions excluded, the bill is too indefinite to be considered.
    '[Ed.‘ Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2S03, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. <©=>1091.]
    11. Criminal Law <©=>478 — Evidence—Qualification of Witnesses.
    In a prosecution for murder, it is not error to admit the testimony of a witness on the question whether horses were running, based upon observation of the tracks made by them, where it appeared that he had been accustomed to riding horses-all his life, and that he could tell by tracks whether they were walking or running.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1065, 1066; Dec. Dig. <©=> 478.]
    12. Criminal Law <§=>656 — Trial—Conduct of Court — Effect.
    While the court, in a prosecution for homicide, cannot make remarks indicating his views of the testimony or its bearing or relation to the case, a remark, in response to defendant’s objection to certain evidence, that, “I don’t like this kind of -procedure, and would not have allowed it if the [prosecuting attorney] had not yielded,” is not of sufficient importance to cause reversal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1524 — 1533; Dec. Dig. <©=> 656.]
    13. Criminal Law <@=>1169 — Appeal—Harmless Error — Admission of Evidence.
    Error in admitting testimony that one of a certain family disliked a certain person because he had kiüed her son was harmless, where other evidence already shows that fact.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754,'3088, 3130, 3137-3143; Dec. Dig. <©=>1169.]
    14. Criminal Law <@=1169 — Harmless Error — Evidence—Admissibility.
    Even if testimony of a witness, who showed interest in deceased, that her former husband was his brother, was not' admissible, its admission was of sueli slight importance as not to merit consideration.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143; Dec. Dig. <§=>1169.]
    15. Criminal Law <@=>719 — Trial— Argument of Counsel.
    In a prosecution for murder, a statement of the county attorney that “the deceased was lying on the ground groaning, bleeding, and dying when defendant shot him the last time” is not objectionable, where there was some testimony showing that defendant shot the deceased after he was down.
    [Ed. Note. — Eor other eases, see Criminal Law, Cent. Dig. § 1669; Dec. Dig. <§=>719.]
    16. Criminal Law <@=>730 — Te’ial—Remarks of Counsel.
    In a prosecution for murder, statements of the district attorney of certain testimony of witnesses on a former trial, sought to be used by him as corroborative evidence, while erroneously permitted, did not show error, where the court repeatedly instructed and admonished him and the jury that such testimony was not corroborative, but could be used only to contradict the witnesses.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1693; Dec. Dig. <&=>730.]
    17. Criminal Law <@=>728 — Trial—Conduct of Counsel — Remarks.
    The statement, in a prosecution for murder, that the defendant went to a store and bought cartridges, where there was no proof that he did do so, while error, is waived by failure to request a charge thereon, and does not show ground for reversal.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 1689-1691; Dec. Dig. <@=> 728.]
    On Motion for Rehearing.
    18. Criminal Law <®m>1120 — Record—Questions Presented.
    Where a bill of exceptions to impeaching evidence shows neither that the evidence objected to was in fact impeaching, by setting it out, or that it was in fact given to 'the jury, error in receiving it is not presented for review.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931 — 2937; Dec. Dig. <§=> 1120.]
    Appeal from District Court, Liberty County; LB. Hightower, Judge.
    Vivian Taylor was convicted of murder, and he appeals.
    Affirmed, and on rehearing, rehearing denied.
    H. E. Marshall, of Liberty, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This conviction was for murder, the punishment being assessed at 10 years’ confinement in the penitentiary.

Suggestion is made that the sentence was in accordance with the verdict for 10 years, and did not take into consideration the indeterminate sentence law. This judgment will be so corrected as to comply with the indeterminate sentence law and make the punishment not less than 5 nor more than 10 years. The proper order will be ^ntered by the clerk of this court, so reforming and correcting the sentence.

There were two theories in the case, — one was murder and the other self-defense.

Manslaughter was also given in charge by the court. At least, this is a sufficient statement of the ease from that viewpoint. The state’s view of it was that appellant had animosity against the Nugents, the deceased being named Zimmie Nugent, that on the day of and preceding the killing in the evening, Gilbert Taylor was convicted for killing one of the Nugents, and that the deceased Zim-mie Nugent was interested in that case. It is also shown by the state that Gilbert Taylor, when verdict was returned against him, requested appellant to kill the Nugents, and he replied that he would do the best he could. En route from the town of Liberty, where the trial occurred, on the evening after the trial and conviction of Gilbert Taylor, this difficulty occurred. The theory of the state is that appellant went after his gun, returned and killed deceased. It is unnecessary to go into a detailed statement of the facts with reference to this matter. Appellant’s theory was that a colloquy ensued, and the deceased, Zimmie Nugent, was close enough to, and did, stab him in the back, and he killed him on account of this attack.

There are quite a number of bills of exceptions found in the record — something like 28. The first bill complains of the action of the court permitting the district attorney to show that during the difficulty and when the appellant fired the first shot that he was pointing his gun towards Zimmie Nugent; and, further, that the witness did not think Zimmie Nugent had anything, but would not swear to it. The district attorney also asked this question: “I will ask you to state whether or not you saw Zimmie Nugent and Vivian Taylor when they started to running.” Objection was interposed, and the court ruled against appellant, and ordered the witness to answer the question. The answer was, “They were running.” He was then asked whether or not he saw them all the time they were running. Objection was urged that the previous answer was sufficient. What the answer of this witness was is not shown in the bill. It is therefore unnecessary to consider this further. There is nothing in this bill which would require a reversal of the judgment.

Another bill recites that the district attorney propounded this question to Frank Fregia: “I will ask you to state whether or not Zimmie Nugent stopped before he was killed after he began running.” Appellant objected to this on the ground that the question was leading. The court overruled the objection by stating, “I don’t think it is.” The witness answered, “No, sir, I don’t think he stopped until he was killed.” The defendant then and there excepted and tendered his bill. We hardly think this was a leading question. This was the only ground urged; and the evidence was permissible any way.

While the same witness, Frank Fregia, was on the stand the district attorney asked him to state whether or not he saw Zimmie Nugent and Vivian Taylor all the time until Zimmie was killed. The witness answered, “Ves, sir.” Defendant remarked: “May it please the court that we may make the same objection to this part of the testimony. That it is leading and in improper form.” The court overruled this objection. It was not leading as to whether or not he could see the witness all the time or not.

Another bill recites that Emma Fregia, on cross-examination, was asked by appellant’s counsel: “Isn’t it a fact that you testified on habeas corpus trial that they were as close together as me and Mr. Marshall [referring to Zimmie Nugent and Vivian Taylor]? And isn’t it a fact that you were as close as we are now, if not closer?” The witness answered: “I do not remember about it.” Defendant’s attorneys asked: “Isn’t it a fact that they were as close as we are now?” The state objected. Defendant suggested that he thought the answer was proper, and especially went to show she testified on the habeas corpus trial, “We were as close as we are now, if not closer,” and goes to show that they were close enough for Zimmie to have cut defendant in the back. The court said: “I don’t think that she can be made to answer that question if she says she does not remember. Go ahead, gentlemen, and lets get through with this case.” Exception was noted. The court said, “Yes, sir.” To which ruling of the court defendant excepted. We think this bill shows no error. Of course, if the witness did not remember, it would be difficult to make her testify to things she did not recall. This would have afforded, however, the ground for impeaching her if she had sworn as indicated on some previous occasion. Where a witness is asked about a matter and fails to remember, it can be shown that the witness testified to the matter on a previous occasion as a means of contradiction or impeachment. As this bill is presented we find no error.

Bills Nos. 6, 7, 8, and 9, are practically the same. The jury were excused while the witness Ellis was on the stand, and after their retirement Mr. Ellis, being a witness for the state, the state desired to show by Ellis that appellant made a statement in his presence that “one Taylor was worth the whole damn Nugent family.” Appellant objected to this as irrelevant and immaterial to any issue in the case, and did not tend to show he made this statement as a threat against the life of deceased, and “we wish to make our objection” to the introduction of Mr. Ellis’ testimony. The court overruled the objection, and a bill of exception was noted. Then followed the examination of Mr. Ellis, the substance of which was that on the day of the homicide, and after Gilbert Taylor had been convicted, the witness was permitted to state that appellant was in his (witness’) place of business, had a conversation with him, or he heard a conversation in which appellant stated, referring to the Gilbert Taylor case, and in which something was said about Gilbert getting a term in the penitentiary; that witness remarked, “Its a bad thing for anybody to go to the penitentiary,” and appellant said, “Ves, one Taylor is worth the whole damn Nugent family;” that he thought that was about the substance of the conversation. Appellant objected to this on various grounds, and especially that no particular member of the family was individuated or specified. We think the facts of the case, even this bill of exceptions, sufficiently show that this testimony was admissible. It showed a feeling of opposition, if not motive, which was sufficient to include the deceased. He was one of the Nugent family and closely related to the Nugent who was killed by Gilbert Taylor. He was clearly included in the family, and was sufficiently indicated as being one of them.

Bill of exceptions 8 and 9, referred to, was in regard to the witness Franklin Ellis, son of the other Ellis. The substance of the bill is practically the same as above mentioned, to wit; bills Nos. 6 and 7.

Bills Nos. 10 and 11 recite that Carlisle, a witness for the state, was asked if Gilbert Taylor was convicted last February. The answer was in the affirmative. When asked, “For the murder of whom?” objection was interposed, which was overruled, and the witness answered, “For the killing of Alfred Nugent’s son.” Alfred Nugent and the deceased, Zimmie Nugent, were half-brothers. It was further shown by this witness Car-lisle, on the trial of Gilbert Taylor, Zimmie Nugent was a witness for the state and assisted in the prosecution of Gilbert Taylor. Further objection was urged that this was irrelevant, immaterial, and prejudicial, and introduced for the purpose of inflaming the minds of the jury against the defendant, and that appellant was • in no way connected with the killing of Alfred Nugent’s son by Gilbert Taylor. It was also shown by thiá witness that he had sent after Frozene Nu-gent to come to court as a witness, and that the witness had sent Albert Nugent after her in a buggy. Objection, was urged to this because it was “boosting up and corroborating their own witnesses that they have brought here.” The objection was overruled. This testimony was admissible on the question of the relation of the parties to the transaction arid the probable motive to kill Zimmie Nugent. Zimmie Nugent was a half-brother of Alfred Nugent, whom Gilbert Taylor killed, and was assisting in the prosecution of Gilbert Taylor. Appellant was closely related to Gilbert Taylor, and for reasons heretofore set out, we think this testimony was admissible to show relation of the parties and the mental condition and status of appellant towards deceased, Zi'mmie Nugent.

There are three other bills, IS, 14, and 15, which recite that while the witness Dagle was testifying, on cross-examination, he was asked: “Didn’t you testify on the examining trial the day after this happened?” He answered in the affirmative. He was then asked: “Didn’t you state in answer to this question, ‘What did you do then,’ ‘Well Frank waved for Feran to bring his pa’s horse’?” Defendant objected to all this purported testimony on the examining trial on the ground it was not properly signed, not sworn to, and was never shown to the witness for him to change his testimony. The court ordered the examination to proceed. They made further objection that it was improper to cross-examine the witness on what is purported to be testimony on the examining trial, when the same is not sworn to by the witness, and that the testimony he is reading from is not verified as required by law. The court remarked, “This is the same thing you were doing yesterday. Go ahead gentlemen.” Exception was taken to this remark of the court. Then it was asked: “Wasn’t you asked this question on the examining trial, ‘What did you do?’ and didn’t you answer thus, Well, Frank waved for Feran to bring his pa’s horse;’ did you say that? A. I don’t remember. Q. And wasn’t you asked this question, ‘What did Feran do then,’ and wasn’t your answer, ‘Feran just stopped’ ? A. No, sir.” Appellant again objected. Then follows quite a lot of this same character of testimony, all of it being questions to the witness as to what occurred during the examining trial. It covers several pages. We are of the opinion that these bills do not show any error. It is proper to lay a predicate to show what the witness stated on the examining trial, whether reduced to writing or not, or whether he had signed the document or not. If he stated testimony on an examining trial different from what he testified on the final trial, he could be thus impeached, and the fact that it was or was not reduced to writing would not alter the rule. The predicate could be laid for the impeachment, and if the necessity arose, or the occasion was made to introduce the impeaching testimony, it could be as well done this way as if the testimony had been reduced to writing and signed. Contradictory statements of witnesses may be proved, whether sworn to or not, whether reduced to writing or not. If the witness failed to answer for the state in accordance with his previous testimony, evidence could be introduced to show the contradiction. The fact that the state did not introduce such testimony would not change the rule of laying the predicate. It is not always advisable to lay a predicate, however, without following it up, and if no injury is shown to have been done by reason of this condition of things, it would not be reversible error. If the witness stated, on the final trial, testimony different from what he stated on the examining trial, he could be contradicted; or if he stated different testimony on the examining trial from what he stated on the final trial, the state might contradict him by showing his former testimony or former statement was in contravention of what he now testifies.

The appellant proposed to prove by the witness Daniel that the deceased had frequently talked to him about his trouble and had told him of various people he had whipped and beat, and he “was the bully of the Fregia settlement.” This seems to have been excluded by the court, but the grounds of objection are not stated, or the purpose for which the testimony was sought. Therefore the bill is too indefinite.

By the witness Barrow appellant proposed to prove, and would have done so had he been permitted, specific acts of the deceased, or at least such as narrated by the deceased, that he “was the bully of the Fregia neighborhood, or settlement.” The object or purpose of this testimony is not stated in the bill, nor any fact stated that would connect it up or show the purpose for which it was sought.

Abshier, on cross-examination, was asked if he had ever heard of him being in any trouble, or fighting. “Did you hear that there was a charge against him for skinning cattle?” Defendant objected. The answer of the witness is not given, nor does the bill show to whom they referred in using the words “he” and “him.” The bill is too indefinite to be discussed.

The state introduced Carlisle, and we are led to believe, in a general way from this bill, that they were inquiring as to the location of the dead body after the trouble, though this is not specific. Hqwever, we are led to believe that that was the subject of the inquiry. He was then asked if he looked at the horse tracks and could tell whether they were walking or running. The court sustained the objection because a predicate had not been properly laid. Then follows various and sundry questions and answers, showing this witness had been accustomed to riding horses all his life in practically every conceivable way. He was then asked the question whether or not he could tell by horses’ tracks whether they were walking or running. Objection was urged. The court overruled the objection. The witness answered, “They were running.” He was then asked if the tracks of the horse on the ground showed him to be walking or running, and he answered as before. It was legitimate testimony, and the witness qualified himself to answer the question.

Another bill recites that, while this ■same witness Carlisle was on the stand, he was asked to look at a gun, and, further, if that was the gun he got from Vivian Taylor when he arrested him. And further, if it had been in his possession since the arrest. He stated on cross-examination that he got this gun at Gustave Fruger’s where he found appellant, and that this was the same gun, and was the only Winchester there. He was then asked if he was present at the examining trial and heard Dagle’s testimony. He answered in the affirmative. Objection was urged because going into a new issue. Defendant stated he wanted to introduce the gun, and that was the purpose of putting Carlisle on the stand, and didn’t think it was right to reopen the case as all of their witnesses had gone home. The court remarked: “I don’t like this kind of procedure, gentlemen, and would not have allowed it, if Mr. Manry had not yielded.” Defendant said, “We wish to take a hill of exceptions to the remark of the court.” While the court is prohibited from making remarks indicating his views of the testimony, or its bearing or relation to the case, we do not believe this remark by the court is brought within the rule, and is not of sufficient importance to be seriously considered.

Another bill recites that Mrs. Frozene Nugent was, on redirect examination, asked the following question by the district attorney: “Mr. Marshall asked you awhile ago how about the Taylors and how you felt towards them, and you stated to him that you had nothing against any of them except Gilbert?” She said, “Yes, sir.” She was then asked: “You stated to Mr. Marshall awhile ago you had nothing against any of the Taylors except Gilbert Taylor, Gilbert Taylor was the one convicted by”— The defendant stated: “We certainly object to that question, it has nothing to do with this case. State: They brought out she had something against the Taylors. She said she had nothing against any of them except Gilbert, and I want to ask her what feeling she had against Gilbert.” Objections were urged on the ground that this was irrelevant, immaterial, incompetent, and improper testimony, and highly prejudicial to defendant in this case. The Court. Let her answer the question. “Q. What answer do you give why you do not like Gilbert Taylor? A. Because he killed my boy.” Defendant duly excepted on the grounds above stated. We are of opinion that whether the testimony was inadmissible or not, it would not present error, as the evidence had already shown that Gilbert Taylor had killed the witness’ son.

They also proved by this same witness she had been sick for two months, and that her former husband was a brother of the deceased. This is a small matter and, if error, is not sufficient to require serious consideration.

During the trial of the case the county attorney, in his opening argument, used this language: “The deceased, Zimmie Nugent, was lying on the ground groaning, bleeding, and dying when defendant shot Mm the last time.” Objection was urged to this argument. There is some evidence to justify this comment. Some of the testimony goes to the effect that after Zimmie Nugent fell from his horse appellant went back to where he was and shot him again while down.

Another bill recites that while Mr. Manry, district attorney, was arguing the case to the jury, he told the jury that Frank Fruger and Feran Fruger swore that the defendant had a gun when he crossed the marsh, and that Eugene Dagle said the same on the examining trial that he had a gun when he crossed the marsh. Objection was urged to this argument ■ as being improper, and the court told the district attorney that said testimony of the witness, Eugene Dagle, on the examining trial, could not be used as corroborative evidence, but only as impeaching evidence. And later Mr. Manry, in his closing argument for the state, and after the court had admonished him that said testimony could only be used as impeaching testimony, further said: “On the examining trial Eugene Dagle said that Zimmie and his boy were running, and the defendant and Rad were running after them, he said that the next day, Frank and Feran Fruger said that here on this trial, and it corroborates-Frank Fruger and Feran Fruger, and how can you get self-defense out of that.”

Objection was again urged that they should not consider this testimony as corroborating evidence, and the court so instructed the jury, and again admonished the district attorney not to argue the same as corroborative. That said district attorney further said: “Gentlemen of the jury, the defendant went to Ellis’ store and bought cartridges just after having made the threat as stated by the witness, Frozene Nugent, for the state.” The bill recites there was no evidence that defendant had so bought cartridges. This last statement seems to have been beyond the record. As we understand, they undertook to prove, but failed to do so, that appellant bought cartridges. They did prove that he sought to buy cartridges, but Mr. Ellis did not have them in stock, and he failed to buy them. No charge was asked in reference to the matter, and none given by the court, instructing them not to consider this. In view of the many decisions by this court on this question, we do not believe we would be justified in reversing the case for this reason. Little v. State, 178 S. W. 326, decided June 23d last.

Viewing this case from these different viewpoints, we are of opinion that there is no error of sufficient importance to require a reversal, and it is therefore affirmed.

On Motion for Rehearing.

On a former day of this term the judgment herein was affirmed. Quite a number of matters were disposed of and bills of exception discussed. The appellant files a motion for rehearing, basing it only on the failure of the court td discuss bill of exceptions No. 28. As the writer wrote the opinion affirming the judgment, he desires to say that in discussing the other bills of the same import he, in his own mind, believed it would bq understood that bill No. 28 was disposed of by the decision in regard to the other bills, but as it is presented it will now be discussed.

That bill substantially shows the court permitted the state to “attempt to impeach the witness Dagle,” defendant’s witness, by the testimony of Perryman. Perryman was the stenographer who had taken the testimony in the examining trial. It is stated in the bill that, over objection of defendant, the witness Perryman was permitted to read from portions of a purported statement of facts which Perryman transcribed from his stenographic notes, and what was purported to be the evidence of the witness Dagle at the examining trial, the record showing that said statement of facts at said examining trial had not been signed or sworn to by the witness Dagle, and had not been verified by the justice of the peace who held the examining trial, and that same had not been read over to the witness Eugene Dagle, and the witness Dagle had not been given the opportunity to read the same over and make or suggest such corrections in his testimony at the examining trial, as he might wish to make. And the witness Perryman testified that he was not an expert court reporter, and had not reported more than three or four eases, and that he would not say that his notes reflected absolutely what the witness testified to, but he must have said it, or witness would not have put it down. Perryman further said he had no independent recollection, after consulting the transcribed testimony of the witness Eugene Dagle at the examining trial, as to what the witness Dagle swore, to which defendant objected on the ground that the' testimony was inadmissible for the purpose of impeaching Eugene Dagle. What was said with reference to bills of exception Nos. 13, 14, and 15 might apply here, so far as that question is there discussed, but this bill is further deficient in failing to show what testimony was detailed by Perry-man, either' from his notes or without them. Of course, the state had a legal right to impeáeh the witness Dagle on any statement that he made before the jury by statements he made at court or in or out of court at other times or places, either or both. If his testimony at the examining trial- was different from what it was on the final trial, this matter could be shown, and this whether or not it had been taken down by the stenographer. These matters have been discussed and decided in several cases, and it is not thought necessary to review that question again. But whatever Perryman did write down, or whatever he did say before the jury, if he did say anything, is not shown by the bill of exceptions. It is not shown that it impeached or contradicted Dagle, and, so far as the bill is concerned, it may have corroborated him. The bill recites that these matters were offered for the purpose of attempting an impeachment. Before this sort of matter can be the ground of a reversal, it must be shown that the impeachment was wrong, and that the testimony went before the jury erroneously. In order to bring that matter cogently before the court, it must show the matter of impeachment and the testimony introduced to support the predicate. Without that, this court is unable to tell or to know whether the testimony introduced had impeached or not. It may have corroborated, or it may have impeached, but that would be simply a speculation so far as this court is concerned, unless the bill of exceptions notified us what the testimony, if any, was which was introduced.

Out of deference to the insistence of the able counsel of appellant this matter has been taken up, and this much said about it We do not think, in the light of this bill of exceptions which forms the basis of this motion for rehearing, there is anything requiring the court to reverse the judgment.

The motion for rehearing will therefore be overruled.
      <gc^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      igssFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    BOGAN v. STATE.
    (No. 3753.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.)
    1. Criminal Daw <&wkey;954 — Appeal and Error-Motion itor New Trial — Grounds— Questions Raised.
    Where a motion for new trial alleges that the verdict is contrary to the evidence and that the judgment of the court is contrary to the law, the only question raised is the sufficiency of the evidence to sustain the verdict.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2341, 2303-2367; Dec. Dig. <§¿¿954.] *.
    2. Criminal Law &wkey;>956 — Trial—Conduct oe Jury — Evidence.
    Evidence held insufficient to show such discussion by the jury of defendant’s failure to testify as to entitle him to a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2373-2391; Dec. Dig. <&wkey;> 956.]
    Appeal from District Court, Wharton County ; Samuel J. Styles, Judge.
    Tommie Bogan was convicted of robber}', and he appeals.
    Affirmed.
    H. A. Cline, of Wharton, for appellant C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was convicted of robbery, and his punishment assessed at five years’ confinement in the state penitentiary.

There are but three grounds in the motion for a new trial, the first two alleging: (1) Because the verdict is contrary to the evidence; (2) because the judgment of the court is contrary to the law. These grounds only raise the issue of the sufficiency of the evidence to sustain the verdict. We have read it, and think it fully sustains a verdict of guilty.

The third and only other ground alleges that the jury, while considering the case, discussed the failure of defendant to testify on the trial. Under this assignment appellant states the proposition:

“If the jurors did discuss and argue the failure of defendant to testify, defendant was entitled to a new trial, although the jurors may have afterwards testified they were not influenced thereby.”

To this proposition of law we give our assent, but the evidence heard on the motion for a new trial does not sustain the proposition. It is true that the testimony of one of the jurors, W. B. Frazier, would have a tendency to sustain the proposition that the failure of defendant to testify was discussed, and that it did not'influence him, but we cannot say that the trial court should have accepted his testimony, when all the other jurors who testified say that the failure of defendant to testify was not discussed. They show: That a ballot had been taken, and 11 of them (all except Mr. Frazier) voted guilty. That while considering the matter further some juryman remarked, “Why did they not put that man on the stand,” when Mr. Davis, Mr. Gordon,'and Mr. Ewart all said:

“You can’t bring that into the jury room— you cannot discuss it nor consider it. We were charged not to say anything about that, nor consider it.”

That no further mention was made of his failure to testify, or, as one juror expresses it, “we quashed it right there.” Such an incidental reference to the failure of the defendant to testify has always been held not to present reversible error, especially when all the jurors (except Frazier) testify that their.’ attention was called to the fact the court had instructed them not to consider it, and it was not considered in arriving at their verdict. Even Mr. Frazier testifies it had no influence on him. Cooper v. State, 162 S. W. 366, and cases cited.

The judgment is affirmed.
      otlier cases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes


text:
    LEWIS et al. v. STATE.
    (No. 3812.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.)
    1. Criminad Law <&wkey;696 — Striking Out Evidence — Admission Without Objection.
    Improper evidence, though admitted without objection, should be struck out, on motion made at any time before submission to the jury.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 1639-1644; Dec. Dig. <&wkey;> 696.]
    2. Witnesses <&wkey;53 — Cross-Examination —Wife Testifying for Accused Husband.
    Under Code Cr. Proc. 1911, arts. 794, 795, as to husband and wife testifying for and against each other in criminal cases, a wife can be cross-examined only as to matters about which she testified in chief for her husband.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 137-141; Dee. Dig. &wkey;53.]
    Appeal from District Court, Wichita County; E. W. Nicholson, Judge:
    W. D. Lewis and Joe Devers were convicted, and appeal.
    Reversed and remanded.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Both appellants were convicted of burglary, and the punishment of each assessed. at two years’ confinement in the penitentiary.

There are several bills of exception in the record, and a number of grounds noted in the motion for new trial, but there is only one that need be discussed, for it alone presents error. Appellants were charged with breaking into a house and stealing some chickens. Their sale was proven to have been made by appellants, in whose possession the chickens were found. In fact, the sale was admitted, and appellants contend that Lewis purchased the chickens from a peddler. He placed his wife on the stand as a witness, and she testified she saw her husband purchase the chickens from an old-looking man, and that her husband paid 59 cents each for the chickens. This is all the fact inquired about on direct examination. On cross-examination of appellant Lewis’ wife, the state asked if she was not staying in jail; and, when she answered she was, she was asked if she was in jail for giving her husband a razor and key while in jail, and told him to lock Bob up while Bob was feeding them; and, while she denied those things, yet she was compelled to admit that she was there in jail charged with having committed that offense. This testimony was not objected to at the time it was adduced, but appellants’ counsel did later file a motion asking the court to strike out the testimony; and, when the court refused to dO’ so, he prepared and presented a special charge asking the court to instruct the jury not to consider this testimony. •

The court declined to strike out the testimony, and refused to give the special charge on the ground that,- as it was not objected to at the time it was introduced, the motion to strike out came too late. In this the court erred. If improper testimony is admitted, a motion 'to strike it out should be sustained if made at any time before the case is submitted to the jury. A wife can be cross-examined only in regard to matters about which she testified in chief. Articles 794, 795, C. C. P.; Merritt v. State, 39 Tex. Cr. R. 70, 45 S. W. 21, and cases therein cited.

Tlie judgment is reversed, and the cause remanded.
      <JsoEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J. DAVIDSON, J.

text:
    BESSETT v. STATE.
    (No. 3821.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.)
    1. Criminal Law <&wkey;982 — Trial — Suspension of Sentence — Necessity oe Plea.
    Where, in a prosecution for crime, no plea for suspension of sentence was filed before trial, and the jury, after being told by the court, in answer to their question, that they could not recommend a suspension, nevertheless returned verdict of guilty, recommending suspension, the action of the court in entering up judgment and sentence upon such verdict, disregarding the recommendation to suspend, was proper, since a judge has no power to suspend sentence, unless proper plea is filed before trial.
    LEd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. &wkey;> 982.]
    2. Criminal Law <&wkey;957 — Trial—'Verdict— Impeachment by Jury.
    Where on motion for new trial, the court permitted four jurors to testify, who undertook to impeach their verdict, refusal to set the verdict aside on their testimony was proper, since a verdict may not be impeached by members of the jury that returned it.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2392-2395; Dee. Dig. <3&wkey; 957.]
    3. Criminal Law <&wkey;982 — Suspension op Sentence — Statute. 1
    Where no plea for suspension of sentence was filed before trial, but the jury, in face of the statement of the judge that they could not recommend such suspension, returned a verdict, doing so, the court’s action in entering up judgment and sentence disregarding the recommendation was not improper under Code Or. Proe. 1911, art. 773, permitting an informal verdict to be corrected by the court with the consent of the jury, since such statute had no application, the court not being required to strike out, with or without the jury’s consent, the recommendation of suspension of sentence, nor to have the jury retire to strike out such recommendation, or to further consider their verdict.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. <&wkey;> 982.]
    Davidson, J., dissenting.
    Appeal from District Court, Wichita County ; E. W. Nicholson, Judge.
    Ernest Bessett was convicted of theft from the person, and he appeals.
    Affirmed.
    Bernard Martin, of Wichita Falls, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction of theft from the person, with the lowest penalty assessed.

There is no statement of facts. The question to be passed upon is raised by a bill of exceptions. It shows substantially that appellant filed no plea seeking a suspended sentence; that, after all the evidence, charge of the court, and the argument of the attorneys for both sides, the jury retired to consider their verdict. They all knew that the court did not submit any charge authorizing them to find anything on the subject of suspending the sentence; that, when they first went out, six were for conviction and six for acquittal, and perhaps later five were for conviction and seven for acquittal. When the jury had thus been hung up for some hours, the question of a suspended sentence was brought up by some of them; and, it seems, after discussing this for a while, they differing as to whether they could do so, agreed, and in a body went before the court in open session and propounded this written query to the judge:

“If we convict the defendant and assess Ms punishment at confinement in the penitentiary for two years, can we recommend a suspension of the-sentence?”

—which was properly signed by the foreman. The court answered in writing on the same piece of paper the word, “No.” They then again retired to further consider their verdict. Some of them then argued that they had to decide the question themselves and recommend the sentence, and that, when they returned into open court their verdict, finding appellant guilty, fixing his punishment and recommending suspension of his sentence, the judge would, if he received the verdict, suspend the sentence and, if not, send them back for further consideration. They thereupon returned into open court the following verdict:

“We, the jury, find the defendant guilty as charged by indictment and assess his punishment at confinement in the penitentiary for a term of two years, and we recommend a suspended sentence.”

This was properly signed by the foreman as such. The court received the verdict and discharged the jury, then entered up a judgment and sentence, assessing his punishment at confinement in the penitentiary for a term of two years, and disregarded the recommendation of the jury to suspend the sentence. Afterwards, the appellant made a motion for a new trial, attaching the affidavit thereto of three of the jurors, in effect stating that they did not, in fact, believe the appellant guilty beyond a reasonable doubt, but had some doubts of it, and because thereof were unwilling to convict him unless his sentence should be suspended, but that they all voted for guilty, so brought in the verdict and understood it at the time, but would not have done so had they not believed that the court would suspend the sentence. When the motion for a new trial was heard, the court permitted four of these jurors to testify, who undertook by their testimony to thus impeach their verdict. They all testified to the fact of the jury propounding the said question to the judge, and his answer thereto. One of them swore that he knew the court would not suspend the sentence; that, when the judge had answered their query, “No,” he knew that settled it. He said it was afterwards argued in the jury that it would not hurt to put the recommendation down there. It would not change the verdict at all, because the jury had decided it anyway, and that would not affect the verdict at all; that was agreed on. The court, after hearing all the evidence by the four jurors, attempting to impeach their verdict, denied a new trial, and, in his qualification of the bill, states about the jury coming in a body and propounding the said question to him, and his answer thereto, and further said:

“In view of what took place, it is inconceivable how any juror could have been misled by alleged misrepresentations of other jurors.”

The action of the court was correct in every particular. This court, in several decisions, has held that the judge had no power to suspend the sentence without the proper plea being filed prior to beginning the trial, and it was in effect his duty to ignore the recommendation for a suspended sentence unless such plea had been filed before the trial began. Barnett v. State, 170 S. W. 143; Speer v. State, 171 S. W. 201; Roberts v. State, 71 Tex. Cr. R. 77, 158 S. W. 1003.

The latter part of the verdict, recommending the suspension of sentence, was mere sur-plusage. Perry v. State, 44 Tex. 473; Roberts v. State, 33 Tex. Cr. R. 83, 24 S. W. 895. The court in the judgment and sentence correctly in effect so held and acted.

It has always been held, both by our Supreme Court when it had criminal jurisdiction and this court, that the jury, and none of the jurors, could impeach their verdict, as was attempted to be done by their testimony in this case. In Johnson v. State, 27 Tex. 758, our Supreme Court said:

“No case has yet occurred in this state wherein the courts have tolerated such affidavits * * * to impeach verdicts. If ever admissible, they can only be allowed in an extreme case and under an imperative necessity for the accomplishment of justice.”

The rule rests upon the .obvious ground that, were it otherwise, few verdicts would escape attack by jurors under influence that would be brought to bear upon them after their discharge by the court.

“The rule is well established that no affidavit, deposition, or other sworn statement of a juror will be received to impeach a verdict, or to explain it, or to show on what grounds it was rendered. Weatherford v. State, 31 Tex. Cr. R. 530 [21 S. W. 251, 37 Am. St. Rep. 828]. In Pilot v. State, 38 Tex. Cr. R. 515 [43 S. W. 112, 1024], this court held it was not error to refuse to set aside^ verdict upon the affidavit of a juror; that He had been coerced through fear to assent to it, nor will a verdict be set aside on account of the affidavit of a juror that he was induced to sign the verdict by a promise that the jury would recommend * * * executive clemency. Henry v. State, 43 S. W. 340; Montgomery v. State, 13 Tex. App. 74.” Bacon v. State, 61 Tex. Cr. R. 210, 134 S. W. 690; Patterson v. State, 63 Tex. Cr. R. 309, 140 S. W. 1128; Rogers v. State, 71 Tex. Cr. R. 156, 159 S. W. 40.

The statute (article 773, C. C. P.), permitting an informal verdict to be corrected by the court with the consent of the jury, has no application to this case. The court was not required to strike out, with or without the consent of the jury, their recommendation of a suspended sentence, nor was he required to have the jury retired to do so, or further consider their verdict. The verdict, in as plain language as could be, found the defendant guilty of the offense charged, and fixed his punishment therefor. The court could properly, as he did, receive the verdict even with the recommendation, but he had neither power, nor authority, to render other than a straight judgment and sentence of conviction and not suspend the sentence.

The judgment is'affirmed.

DAVIDSON, J.

(dissenting). Appellant was convicted of theft from the person. The jury returned a verdict of guilty, assessing his punishment at two years in the penitentiary and recommending a suspended sentence.

The judgment ’of the court shows this verdict as returned by the jury. In rendering the judgment the court, however, disregarded the recommendation by the jury for suspended sentence, and entered a judgment against him for two years in the penitentiary. This seems to have been predicated upon the idea on the part of the court that appellant had not filed a plea for a suspended sentence. A hill of exceptions recites that the verdict was returned as indicated, and the court accepted the verdict and discharged the jury. This occurred on 8th of July. On the 10th appellant filed a motion to set aside the verdict and judgment and to grant a new trial, and on 15th of July his amended motion was filed, asking that the verdict and judgment be set aside. This motion for a new trial sets out at length a great many things, among them affidavits signed by a number of the jurors, and in addition the jurors were summoned by the court on motion for new trial, and their evidence is made also a part of the motion for new trial and bill of exceptions. The bill of exceptions is approved, but qualified by the judge to this effect:

“That after the jury had been out for several hours, they came in and presented to the court the following written question: ‘If we convict the defendant and assess his punishment at confinement in the penitentiary for two years, can we recommend a suspension of his sentence?’ [Signed] T. S. Freeman, Foreman — to which the court answered officially in writing on the same piece of paper the word, ‘No.’ In view of what took place, as above set out, it is inconceivable how any juror could have been misled by alleged representations of other jurors.”

The jurors believed they had the right to allot a suspension of his sentence, as the law left that matter exclusively to their decision. If it be held that the defendant could not get the benefit of the suspended sentence without his sworn application, then the jury returned a verdict which they were not authorized to do, and the court did not have any authority to receive it. An illegal ver-diet is a paradox. If illegal, it is not to be received or enforced. If be did not like the verdict and thought it was illegal, he should have sent the jury back and required them to find a proper verdict. Rev. C. O. P. 1911, art. 773. He informed them of the fact that they could not find in favor of the suspended sentence, and yetf they did so over his written instruction. If the verdict is illegal, then no judgment could be rendered thereon. 'Such action was serious misconduct on part of the jury, for which they were not even reprimanded by the court. The defendant is made tó suffer it If the verdict is illegal, the court cannot legalize it by receiving it. So from any viewpoint a judgment could not be entered upon that verdict. If we go to the affidavits and the testimony, and the bill of exceptions, it is not debatable that the jury did not intend to convict under any circumstances unless they could award the suspended sentence. This bill of exceptions also shows that they stood seven for acquittal and five for conviction, and after discussing the matter among themselves, in the face of the charge of the court, they thought they had the right to give him the suspended sentence, and if they had not, in no event would they agree to punish. They agreed and compromised On that verdict with the suspended sentence, otherwise it is self-evident from the bill of exceptions that but for such agreement no verdict would have been rendered in the case convicting appellant. This is such a verdict even from that viewpoint as ought not to be received by the court or permitted to stand as basis for the entered judgment. Article 774 of the Revised Code of Oriminal Procedure of 1911 provides, if the jury refuse to have the verdict altered, they shall again retire to their room to deliberate, unless it manifestly appears that the verdict is intended as an acquittal, and in that case the judgment shall be rendered accordingly, discharging the defendant The jury did not refuse to change their verdict, for they were not required so to do by the court, nor did the court call their attention to it Article 773 provides that, if the jury find a verdict which is informal, their attention shall be called to it and with their consent the verdict may, under direction of the court, be reduced to proper form. There was no attempt by the court to have the verdict reformed or changed as required by this statute. The verdict was brought in, received by the court, the jury discharged, and judgment entered upon it as brought in, except the judgment omitted the suspended sentence recommendation. Upon this the court entered judgment and sentence against the defendant in the face of the verdict brought in by the jury. It is true the jury disregarded the court’s instruction, but it is equally true that they determined not to convict him so he could be punished, and they further determined that they purposed to suspend his sentence and see that he was not punished in the penitentiary, and this in the face of the emphatic charge of the court. The judge cannot render a verdict, or any portion of it, nor enter a judgment upon a verdict except as the jury returns it He must either take the verdict as it is, or send the jury back to agree in accordance with the law. From any viewpoint this judgment ought not to stand as I understand the law. This was not an attack on their verdict by the jury, as my Brethren seem to think. It was a direct refusal to obey the court’s instruction. It comes within the rule, and strictly so, of misconduct, expressly and willfully done, as manifested by the court’s qualification. Whether their affidavits were or not filed with the new trial motion, and despite the facts set out in the bill of exceptions, this misconduct is fully verified by the judge, if they had no legal right to recommend suspended sentence. It is wholly unnecessary to go to these affidavits and testimony adduced thereunder to prove such misconduct. The verdict was rendered against positive and unqualified instructions of the judge not to return such verdict, yet the judge received it in the face of all this, and discharged the jury even without a reprimand, and substituted a verdict as basis for a judgment the jury did not return. He knew of this misconduct when he received the verdict, because plainly and positively specified by the jury in defiance of his written charge. What is a verdict of a jury anyway? This is answered by the statute (article 763, C. C. P. 1911) as follows:

“A verdict is a declaration by a jury of their decision of the issues submitted to them in the case, and it must be in writing and concurred in by each member of the jury.”

It must be a jury of 12 members — no more and no less. C. C. P. 1911, art. 764, Const, art. 5, § -13. The judge is not a juror, and cannot render a verdict, or any part of it, in a felony case, nor can he substitute his judgment for the verdict of a jury. He has power to cause a correct and proper verdict to be returned, and, if such verdict is not rendered, he can retire the jury till they agree on such a verdict. He cannot substitute Ms judgment, however, for an incorrect or illegal verdict.

My Brethren hold, under the authority of Barnett v. State, 170 S. W. 143, and Speer v. State, 171 S. W. 201, this judgment ought to be affirmed, and they do affirm it. It will be noticed those two eases, however, do not discuss the two statutes I have mentioned. They were not even noticed in those opinions. The fact that those decisions were by a unanimous court does not cure the failure to notice articles 773 and 774 of Code Crim. Proc., supra. I do not evade my responsibility for the two cases cited by majority, but for that reason I am not willing to be further responsible for the error committed in those cases. The court ought to be correct in deciding the law, rather than consistent in error.

The judgment ought not to he sustained, but it ought to be reversed. I respectfully dissent.
      <&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    DUHIG v. STATE.
    (No. 3806.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.)
    1. Witnesses <&wkey;274 — Cross-Examination— Character.
    Where defendant had put his reputation as a moral man in issue and called certain witnesses to prove it, cross-examination of such witnesses asking if, in forming their opinion of defendant’s reputation, they had considered the report that he had been unduly intimate with' Mexican women, was permissible.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 965, 966; Dec. Dig. &wkey;274.]
    2. Criminal Law <&wkey;815 — Instructions — Evidence — Character—Consideration.
    Where defendant filed an application asking for suspension of sentence, and by direct questions to his own witnesses placed in issue his reputation as a moral man, the refusal of the court to charge the jury not to consider cross-examination of such witnesses whether in forming their opinion of defendant’s general reputation they had considered the report that he was unduly intimate with Mexican women was not erroneous.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1922, 1986; Dec. Dig. <&wkey;> 815.]
    3. Homicide <&wkey;300 — Instruction—Self-Defense.
    Where defendant testified that, when he asked deceased if he wrote a certain letter, deceased said, “Tes; and many others,” dropped his bundle, and ran his hand in his pocket as if to pull a pistol, and the court charged that reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, that it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, the party under danger being in no event bound to retreat, and that, if the jury believed defendant killed, deceased when the latter was preparing to make an attack upon him which defendant had reasonable expectation would result in death or serious bodily injury, defendant was not guilty, such charge aptly stated the law applicable to the evidence.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 614, 616-620, 622-630; Dec. Dig; <§=300.]
    4. Homicide <&wkey;122 — Justification—Adultery oe Wife.
    Where a homicide took place in the absence of defendant’s wife, who had not lived with him for some time, defendant and decedent not being on defendant’s premises, the defense that he acted to protect the sanctity of his home could not avail defendant, since one may kill another only in actual adultery with his wife.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 177-181; Dee. Dig. &wkey;122.]
    5. Criminal Law <&wkey;814 — Instructions — Abstractness.
    A charge without evidence to support it is properly refused.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1821,1833, 1839,1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig. <&wkey;>814.]
    6. Criminal Law &wkey;>829 — Trial—Instructions — Repetition.
    Special requested charges need not be given bearing on an issue as to which the court has presented the. law as applicable to the evidence in the case in its main charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. <5&wkey;829.]
    7. Criminal Law <&wkey;1124 — Questions Reviewable — Refusal of New Trial.
    Where the bill of exceptions complaining of the failure of the court to grant a new trial on newly discovered evidence did not include the affidavits of the new witnesses, which affidavits were not attached to the motion for new trial, and did not appear in the transcript, such bill of exceptions could not be reviewed^
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dec. Dig. &wkey;>1124.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Arthur Duhig was convicted of manslaughter, and he appeals.
    Affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant prosecutes this appeal from a conviction adjudging him guilty of manslaughter.

In defendant’s bills of exceptions Nos. 7, 8, 9, and 10 it is shown that, when defendant’s witnesses Ben S. Fisk, Jack W. Neal, Wm. Hoefegen, and L. Kaufman were on the witness stand, on cross-examination they were asked if in forming' the opinion of defendant’s general reputation they had taken into consideration the report that an illegitimate child had been bom to a Mexican woman on South Flores street on or about December 14, 1914, and that such report had been published in the newspapers, and the defendant was charged with being the father of the child, and if they had heard the report about defendant being the father of an illegitimate child by a Mexican woman who lived with defendant in the back of Dean’s store or in a corral, and that she went by the name of Mrs. Arturo Duing, and had heard that this Mexican woman received mail while living there addressed to Mrs. Arturo Duing. The record discloses, and the court in his qualification shows, that before he allowed such questions to be propounded to the witnesses, the defendant had put in issue his reputation as a moral man, and on direct examination the witnesses named had testified that they knew his general reputation as a moral man, and that it was good. After the witnesses had thus testified, the state was allowed to ask the witnesses if they had heard these reports, and if they took these reports into consideration in arriving at his general reputation as a moral man. A portion of them answered they had heard the reports, and a portion said they had not heard it. As appellant had put his reputation as a moral man in issue, and attempted to prove it was good by these witnesses, the cross-examination was permissible, and tbe court did not err in so bolding.

Appellant, when testifying as a witness, bad admitted tbat be knew tbe reports were in circulation, and tbat tbe Mexican woman bad reported to tbe authorities be was tbe father of tbe child, and be bad taken no steps to have tbe report corrected, but be testified tbe report was untrue. Neither did tbe court err in refusing to instruct tbe jury not to consider this evidence, as appellant bad filed an application asking for a suspension of sentence, and, in addition to putting his reputation as a peaceable, law-abiding citizen in issue, by direct questions to bis witnesses bad placed in issue bis reputation as a moral man.

Appellant excepted to tbe court’s charge because tbe charge on apparent danger was not full and complete, and excepted to tbe charge because tbe court had failed to charge on real danger. Tbe state’s case is tbat appellant and deceased met in tbe yard of Josephine Cavallo; tbat appellant approached deceased and they engaged in a conversation, Josephine Cavallo not understanding what was said. She says tbat after talking awhile deceased started to climb tbe fence, when appellant drew a pistol and began to shoot; that deceased got over the Eence and ran, when appellant pursued bim and shot again, and then threw tbe pistol away. S. T. Chaves testifies that deceased came running into tbe saloon of John Dolan, appellant running after bim; tbat appellant struck deceased and knocked bim down and got on bim and struck deceased again. Witness then stopped the fight; deceased dying where be lay.

Appellant and James McIntosh testified that appellant was sitting on a bench in bis yard, when deceased came into tbe yard of Josephine Cavallo; tbat appellant approached deceased, showing bim a letter, and asked bim if be bad written it; that deceased at first did not reply, but, upon tbe question being again asked, said, “Yes; and several more like it;” and as be made this reply be dropped a bundle be bad in bis arms and put bis band in bis pocket, when appellant drew bis pistol and fired four times in rapid succession, and as deceased turned to run appellant fired tbe fifth time, and after doing so threw the pistol at deceased. Appellant admits pursuing deceased into tbe saloon and striking •bim after getting in tbe saloon. Tbe letter appellant says deceased admitted writing was introduced in evidence, but is not included in tbe record before us, tbe record stating:

“A letter which has been lost or destroyed, but which was dated April 20, 1912, addressed to Mrs. Arthur Duhig, containing a number of endearing terms and references to meetings between the writer and the woman to whom it was addressed, and the narrow escapes from discovery by the husband, and signed, ‘Your second husband, F.’ ”

Tbe attending physician testifies tbat all five shots struck deceased, one in tbe throat, another just below tbat one, two in tbe arm, and one three inches below tbe right shoulder blade; tbat these wounds caused tbe death. Among other things in, bis charge, the court instructéd tbe jury:

“A reasonable apprehension of death or great bodily harm will excuse a party in using all necessary force to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such case the party acting under such apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant.
“If from the evidence you believe the defendant killed the said Frank Lawler, but further believe that at the time of so doing the deceased was preparing to make an attack on him, which from the manner and character of it caused him to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear, the defendant killed the deceased, then you should acquit him.”

This was aptly stating tbe law applicable to tbe evidence. Tbe defendant’s testimony was tbat, when be asked deceased if be wrote tbe letter, be said, “Yes; and many others,” dropping bis bundle, and running bis band in bis pocket. Tbe court instructed tbe jury, if appellant believed tbat deceased was preparing to make an attack on bim, be bad a right to slay deceased. Tbe exceptions to tbe charge above noted present no error, and they were tbe only exceptions reserved to tbe charge as given.

Tbe appellant requested tbe court to instruct the jury tbat under the laws of this state a person has tbe right to protect tbe sanctity of bis borne from an intruder, and tbat be may exercise all bis powers to defend tbe sanctity of bis borne. It is only when one catches another in tbe act of adultery with bis wife tbat be is justified in slaying bis adversary. As this record discloses tbat appellant’s wife was not only not present at tbe time of tbe shooting, but bad not lived with bim for some time, tbe court correctly refused tbe instruction requested; neither were they on appellant’s premises when tbe shooting occurred.

As there were no threats testified to by any one, communicated or uneommunieated, tbe court correctly refused to charge tbe jury tbe law as applicable to such state of case.

As tbe court presented tbe law of self-defense as applicable to tbe evidence in this case, there was no error in refusing tbe special charges requested on tbat issue.

Tbe bill of exceptions complaining of tbe failure of the court to grant bim a new trial on account of newly discovered evidence cannot be reviewed. Tbe alleged affidavits of Clara Ford, T. M. West, W. H. Russell, Ysebel Barientes, and Felix Barrientes are not included in tbe bill, nor are they attached to tbe motion for a new trial. Tbe affidavits (if any such were filed) do not appear at all in tbe transcript before us. Without knowing what is contained in tbe affidavits, it is impossible for us to determine wlietlier or not such evidence would be material to any issue in the case, or whether or not it would come within the rules governing newly discovered evidence..

The judgment is affirmed.
      ©=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    COOK v. STATE.
    (No. 3790.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.)
    1. Homicide <&wkey;>166 — Evidence—Relation or Parties.
    In a prosecution for manslaughter, where defendant killed his wife and her alleged paramour upon discovering them together, testimony that on the same day the paramour had made statements indicating that he anticipated indulging in sexual intercourse that night was admissible as showing his relations with defendant’s wife.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. &wkey;166.]
    2. Criminal Law <&wkey;1091 — Appeal and Error-Bills op Exception — Evidence.
    A bill complaining of admission of evidence which fails to state grounds of objection thereto does not show error.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. <&wkey;>1091.]
    3. Criminal Law <&wkey;736 — Evidence—Con-pessions.
    In a prosecution for manslaughter, where the evidence was conflicting as to whether a purported confession was made on proper warning, and whether defendant knew what it contained, it was error to fail to submit both such issues to the jury.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1219,1220, 1221,1701, 1702, 1705, 1716; Dec. Dig. &wkey;736.]
    4. Criminal Law &wkey;>673 — Evidence — Motive.
    In a prosecution against defendant for shooting his wife while in the company of her paramour, who was also shot, the court should have limited the effect of testimony as to the killing of the latter to its consideration as affecting the killing of the wife.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Big. §§ 1597, 1872-1876; Dec. Dig. <&wkey;673.]
    5. Homicide &wkey;»340— Appeal and Error — Harmless Error.
    An exception as to a charge of murder will not be considered where defendant was acquitted of murder and convicted of manslaughter.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 715-717, 720; Dec. Dig. &wkey;340.)
    6. Homicide <&wkey;101, 297 — Instructions—Jus-TIEI CATION.
    Where defendant was convicted of manslaughter for shooting his wife and her paramour while they were in the act of sexual intercourse or preparing therefor, it was reversible error to instruct that defendant was neither justified nor excused, and to refuse to instruct that under such circumstances defendant was entitled to kill both his wife and her seducer.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 131, 611; Dec. Dig. &wkey;101, 297.]
    Appeal from District Court, Tarrant County ; Marvin H. Brown, Judge.
    G. O. Cook was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Virgil R. Parker and Sam S. Beene, both of Ft. Worth, and Henry S. Bishop, of Amarillo, for appellant. C. C. McDonald, Asst. Attjr. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of manslaughter; his punishment being assessed at five -years’ confinement in the penitentiary.

This case, as is usual, has two sides to it. The undisputed facts will show that appellant and his deceased wife had been married something like 12 years at the time of the tragedy, having three living children. It is also a fact that his wife had been going to dance halls and places at night over appellant’s protest, coming home late at night. On this particular occasion the deceased, her two sisters, who were living or boarding at the house of the deceased and appellant, and a relative of the appellant went down town to do a little shopping, and later to attend moving picture shows. After they finished their shopping, the question of choice of picture shows came up, the deceased said she was not going to a moving picture show, that she was going to a dance hall, perhaps designating the Moose dance hall. Her sisters then, one or both of them, suggested that, if she would designate the time of her return home, when they left the picture shows they would call for her. She stated “No,” they would not be able to find her, and that she would get home probably before they did. They reached home about 11 o’clock, or later, accompanied by appellant’s relative, Louis Cook. Appellant asked the young ladies about his wife. They repeated to him, in substance, what had occurred and was said between them, and they supposed she was at home. Appellant became worried and anxious about it, got up, partially dressed himself and put on his overcoat, got his gun — a single-barrel shotgun — and went in quest of his wife. He went a block or such matter. Not seeing or hearing anything, he sat down on the steps of a vacant house not far from the corner of a street. After he had been sitting there something like 30 minutes, his wife, accompanied by Grimes, came in sight. Appellant approached and told them “to run” or “get away”; both expressions are used in the testimony. Not heeding his remark, appellant fired two shots. Grimes and his wife both were kill-, ed. Grimes lived awhile, and made some statements with reference to the transaction. Appellant’s wife was killed instantly. Grimes was shot in the stomach, and the woman in the back of the head. The state’s theory was that, when appellant shot Grimes, his wife ran, and slipped or stumbled and fell on the edge of the sidewalk, and appellant walked to her and shot her in the back of the head. Appellant’s theory was, supported by testimony, that when he saw them approaching Grimes had his arms around his wife, and his wife had her arms around his shoulder or on his shoulder or around his neck, and when they got to a certain point they stopped and embraced each other closely, and as he saw it Grimes had his hand down about the private parts of his wife trying to pull up her dress, and when he reached them he told them to run or get away, and that it took them some time to get themselves apart. They did not obey him. He fired to kill Grimes, and his wife was in such position that the shot struck her; that he did not intend to kill her, but only intended to kill Grimes, and thus the first shot entered the back of her head, from which she died, and the second shot entered Grimes’ stomach. There is quite a lot of testimony in regard to the conduct of the deceased wife with other men. There is also a statement of Grimes introduced called a dying declaration, and also a confession made to the county attorney by the defendant. The substance of the confession was as to the immediate facts when appellant shot Grimes, and that his wife in some way slipped and his gun went off. The dying declaration of Grimes was to the effect that he met deceased, appellant’s wife, at the foot of the steps leading up in the Moose hall, and at her request he was accompanying her home; that she stated to him, substantially, that her relatives, two sisters, and Louis Cook, had failed to come, and as an accommodation to her he was escorting her home. There is quite a lot of testimony showing that these statements were untrue; that he had been with her a great deal that night and had danced with her. His relation to her for quite awhile had been such as to indicate undue familiarity. One of appellant’s daughters, who was something like 11 years of age, testified that she had gone with her mother at nights to different places, and that Grimes would come home with her mother, and that she (the child) would be ahead of them, .and they would get behind her, and she would stop and hear and see them embracing each other, kissing and doing amorous performances of that nature and character. The conduct of the wife was such that appellant had become uneasy and nervous about it, and expostulated about her going out so much at night and coming home so late. On this particular occasion he became outraged, and concluded he would investigate it, with the result of the tragedy.

Appellant offered to prove by Sargent, who was a letter carrier, that in a conversation with other carriers they were discussing matters, and, to use his expression, “joshing one another”; that the letter carriers were supposed to make eight hours a day, and that a man could not make two full trips in eight hours; if he just has time to make one, he will just make one and a piece of a trip; that they call it a trip and a piece; that the boys were joshing one another about making a trip and a piece or getting a trip and a piece, and that Grimes said, “X am going to get two trips to-day and a piece to-night;” that the witness Sargent had never had any trips at night, because there was no letter carrying at night; that the trips and pieces of trip did not apply to anything at night. The object and purpose of this testimony is not stated in the bill. It occurs to the writer that, as the killing occurred that very night, under the circumstances and facts of the case, if this bill of exceptions had been properly reserved to show all these matters, the testimony ought to have gone to the jury for what it was worth as showing the relations, in view of the facts, existing between Grimes and the deceased woman.

Another bill recites that Melton was permitted to detail before the jury a statement made by deceased Grimes after the shooting upon Melton’s arrival at the scene of the tragedy. There are no objections stated or reasons explained in the bill by the defendant why this testimony should not be admitted. It may have been admissible, but, without some reason shown in the bill why it was not admissible, the bill does not show error. No grounds of objection are stated. The same will apply to the next bill with reference to the testimony of F. M. Patten. There are no grounds of objection stated, nor is it sufficiently connected to show why it was not admissible.

The statement, which is called a confession, was introduced over many objections. There was a controversy as to this confession as to how it was obtained, and the testimony in regard to the matter was narrowed down to that for the state by the county attorney, and for the defendant by the defendant. One shows proper warning; the other excludes it. The defendant says he was not warned, and that just after he had been placed in jail the county attorney sent after him and had him brought into his office and told him to make a statement. He says he was not warned, and that the county attorney had it written down, and that he signed it, and it was never read over to him, and he did not really know what he was signing. The court submitted this in the charge from the standpoint only from the want of warning as the only issue growing out of this controversy as to the real facts. Wie are of opinion upon another trial he not only should submit the issue of a warning, but as to the fact the defendant did not dictate the statement or make the statement or know what the statement contained. It was an issue, and defendant was entitled to have his side' of it presented to the jury. The confession, as shown in the statement of facts, was witnessed by several parties, and if the statement was as contended by the state, it would doubtless be admissible, but, if as contended by tbe defendant, it was not admissible. Anything that impairs tbe voluntariness of tbe statement or shows tbe party confessing did not understand what it was, or that be really did not mate it, or that it was written down and be required to sign it, under such circumstances, it would be a matter for tbe jury whether or not they should consider it. Tbe issue was sharply made and sharply drawn. The charge should properly present this matter.

Another ground of exception to the charge was that the court failed to limit the effect of the testimony of the witnesses as to the shooting of Grimes by defendant, and nowhere charges them, either in substance or in effect, that the testimony could be considered only as a circumstance tending to show defendant’s intent and the condition of his mind, etc., at the time he shot Carrie Cook, and for no other purpose. We are of opinion that, as this matter was connected up so closely, and the shooting all occurred almost instantly, the court should have instructed the jury that they could not convict appellant under this indictment for shooting Grimes, and the testimony would be limited to its proper sphere in considering the killing of his wife. This might not be fatal error, but it would be advisable upon another trial to limit the effect of this testimony so the jury would be confined exclusively in their consideration as to the finding of their verdict to the killing of the wife. '

Another ground of exception will not be considered. It was as to the charge on murder. He was acquitted of murder and awarded manslaughter.

The next ground brings the serious question of the case. Appellant’s theory was that the parties were in such position that they were having intercourse or about to do so, and that at the time he shot they were together and had not “broken apart,” as he said. He was entitled to have the jury charged, under those circumstances, that he would not be guilty of violating the law in killing his wife. The court charged the jury, substantially, that even though they should find from the evidence that defendant found Grimes and his (defendant’s) wife in each other’s embrace, and although they should further find and believe that they were about to have carnal intercourse with each other, defendant would be neither justified nor excused for killing his wife, if they should further find and believe from the evidence that the defendant shot at Carrie Cook, and that the defendant did not accidentally kill the said Carrie Cook. Without going into a detailed statement of the matter further, the court’s limitation on the testimony in this respect is not justified under our law. If appellant, catching them in the act of embracing each other, and under the other circumstances unnecessary here to repeat, already detailed, believed they were then in the act of intercourse, or preparing to do so, he had a right to kill. This is statutory, and the court’s limitation of the law that under such circumstances appellant would not have a right to kill is not correct. This court undertook to review that question in Williams v. State, 73 Tex. Cr. R. at page 480, 165 S. W. 583. The writer of this opinion wrote at length in that ease on several questions, the majority of the court filing a concurring opinion, not agreeing in full with the writer, but did agree, and so held, that where the defendant catches the deceased and his wife in such amorous relations, he would be entitled to kill the wife, as well as the seducer of his wife. This law was ignored in the charge of the court. It should have been given, and the jury instructed, if they believed such to be the fact at the time of the killing, as contended by appellant, they should acquit.

Because the court did not charge this aspect of the law, the judgment is reversed, and the cause remanded.
      other oases see same topic ancl KEY-NUMBER in all Key-Numbered Digests and Indexes