text:
    SMITH v. STATE.
    (No. 4208.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.
    Rehearing Denied Nov. 22, 1916.)
    1. Criminal Daw &wkey;>361(l), 364(4) — Evidence —Declarations—Admissibility.
    In a prosecution for manslaughter, a remark by defendant’s wife and his'reply: “Go back to the house. I have done nothing but
    kill a d-n dog” — was properly admitted in
    evidence, the statement being made almost immediately following the killing, and the remark of the wife being necessary to explain defendant’s statement.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 802, 803, 808, 816; Dec. Dig. &wkey;361(l), 364(4).]
    2. Homicide <&wkey;327 —Appeal and Error — Bill op Exceptions.
    A bill of exceptions to review error in admitting proof of dying declarations must contain and state that it contains all the predicate laid on which the dying declarations are admitted, and must also set out the declaration.
    [Ed Note. — For other cases, see Homicide, Cent. Dig. § 695; Dec. Dig. <&wkey;327J
    3. Homicide <&wkey;115 — Manslaughter—Justification.
    That defendant suffered a ample assault, causing pain or bloodshed, is no justification for homicide, although it reduces the offense to manslaughter, but to justify the killing he must show that he was in danger of death or serious bodily injury.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 155-157; Dec. Dig. &wkey;115.]
    4. Homicide <&wkey;329 — Appeal ' and Error — Review.
    Where on the entire record it appears that the jury would have been authorized to return no other verdict than the one found, which was manslaughter, the appellate court will not, in disregard of its rules, review alleged errors in the admission of a dying declaration, were such error was not urged on motion for new trial, and where the bill of exceptions is insufficient.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 696; Dec. Dig. <&wkey;>329.]
    Appeal from District Court, Angelina County; L. D. Guinn, Judge.
    Monroe Smith was convicted of manslaughter, and appeals.
    Affirmed.
    I. D. Fairchild and Mantooth & Collins, all of Lufkin, for appellant. O. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant prosecutes this appeal from a conviction for manslaughter. While there are three bills of exception in the record, in the argument of appellant’s attorney made in open court and in the brief filed he presents but one of them — the one complaining of the admission of the alleged dying declaration in evidence. The other two complain that the court was in error in admitting the statement, of appellant’s wife and his reply: “Oh, go back to the house. I have done nothing but kill a d-n dog.” If the remark of the wife had not-been necessary to make plain the remark of appellant, her remark would not have been admissible. Certainly no one can contend but that the remark of appellant was admissible. No arrest had been made. No officer was present, and the remark was made almost immediately following the fatal shooting. These bills present no error.

As to the .bill complaining of admitting the alleged dying declaration in evidence, the state contends we should not consider it, because in the motion for a new trial this question was not raised, nor presented to the trial court as a reason why the trial court should have set the judgment aside, and we are referred to the ease of Gant v. State, 73 Tex. Cr. R. 279, 165 S. W. 142, as supporting the state’s contention. See, also, Rules, pp. viii to xi, 159 S. W.; Vinson v. State, 179 S. W. 574; Dees v. Crane, 175 S. W. 468. In that case, decided March 14, 1914, we called the attention of the bar to the fact that our Supreme Court was given authority to prescribe rules for the government of all courts, and had provided that grounds not presented to the trial court in the motion for a new trial could not be considered on appeal. To consider the bill in this case, we must ignore' that rule of the Supreme Court. Appellant admits that in his motion for a new trial -there is no ground specifically assigning the admission of the dying declaration as error, but says it was an oversight, and contends that, inasmuch as we have always heretofore, in emphasizing that we must follow the rules adopted by the Supreme Court, gone into and discussed the bills, we should, notwithstanding the omission, consider his hill in this instance. We have never felt inclined, nor do we now feel inclined, to deprive an appellant of a substantial right by reason of a technical failure to observe the rules, but counsel ought to remember that, while this court is a court of final resort, yet the laws of the state and the rules governing the courts are and should be binding on us.

The state insists that, notwithstanding the appellant did not complain in the motion for a new trial of admitting the alleged dying declaration, if we consider it, the bill itself is insufficient to present that question for review, and cites us to the cases of Highsmith v. State, 41 Tex. Cr. R. 37, 50 S. W. 723, 51 S. W. 919; Edens v. State, 41 Tex. Cr. R. 523, 55 S. W. 815; Hopkins v. State, 53 S. W. 619; Medina v. State, 43 Tex. Cr. R. 52, 63 S. W. 331; and other cases. In these cases the rule is stated to he:

“A bill of exceptions taken to the supposed error of admitting proof of dying declarations must contain and state that it contains all the predicate laid on which the dying declarations are admitted, and must also set out the declaration.”

Appellant admits his bill does not state that all the predicate was not properly laid, nor that it contains all the testimony heard in laying the predicate for the admission of the testimony, but says, as the court refers to the statement of facts in approving the bill, this qualification of the court ought to he held to cure the defects of the bill. And he again urges that in the past, while referring to these defects, we have nearly in every instance gone on and discussed the hill, and he asks that we consider this bill.

We will state that we have read this bill and the entire record, and we are of the opinion that, had this alleged dying declaration not been introduced in evidence, the Jury could and would have been authorized to return no verdict other than at least finding appellant guilty of manslaughter. Of course, ,the state’s case would render appellant guilty of murder, and we will not consider that testimony, but take the testimony offered in behalf of appellant. His testimony is the strongest offered in his behalf, and he admits that deceased was unarmed and in his shirt sleeves. He testifies to no threatening gesture, as if deceased was seeking a weapon of any character. He testifies that deceased was the larger man of the two; that he went to deceased’s place of business in search of Mr. Durham, with whom he claimed to have some business; that he asked deceased if Durham was in there, and’ deceased, instead of answering him, cursed him and hit him; that they scuffled around, when deceased struck him in the mouth and knocked him down and commenced kicking him; that he asked deceased to quit, and when he would not do so, he pulled his pistol and shot him three times. One wound was in the stomach, one in the hand, and the other in the thigh. ■ Two of the wounds are apparently from the front, while the other is from the rear. The theory of appellant is that deceased was facing him when he fired the first two shots, and turned as he fired the last shot. The state by its testimony would contend that when the first shot was fired, deceased had his back to appellant walking off, and he then turned facing appellant.

Appellant admits that deceased was not armed, but says that during the alteration deceased called him a s n of a b-h, and said he would kill him. This remark, the blow in the mouth, the kicks, and' the relative size of the parties is appellant’s testimony of excuse and mitigation of the killing. If everything he says is true, would it justify appellant in slaying his fellow man? The injuries received by appellant, as shown by his testimony, and all the testimony, are such that if deceased was alive and on trial for the assault we could not sustain a verdict of aggravated assault, but the injuries received would only show a simple assault by deceased if appellant’s testimony is the correct version of the affair, and if one unjustifiably make a simple assault on another, causing pain or bloodshed, it reduces the offense to manslaughter, but does not justify one in killing. There must be danger of death or serious bodily injury before he is justifiable in slaying his antagonist.

If the law is to be properly enforced, we think the facts of this case would render appellant guilty of manslaughter, taking into consideration alone the testimony offered in his behalf; and, taking this view of the case, as he was found guilty of manslaughter only, we do not feel inclined to ignore the rules of the court in the first place to consider the hill, and then ignore the rules as regards the sufficiency of bills of this character. Appellant is deprived of no substantial right in enforcing the rules.

The judgmént is affirmed.
      ¿SursEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: nARPER, J.

license: Public Domain

text:
    TIPPETT v. STATE.
    (No. 4244.)
    (Court of Criminal Appeals of Texas.
    Nov. 15, 1916.)
    Weapons <&wkey;ll(l)—Careying Pistol—Statutes—“Peace Oiticer.”
    Const, art. 5, § 12, makes all judges of the courts of the state, not only judicial and civil officers, but also peace officers. Pen. Code 1911, art. 476, exempts peace officers from the provisions of article 475, prohibiting the carrying of arms. Rev. St. 1911, arts. 903-922, creates the corporation court of a city and provides for its judge. Held, that such judge was a “peace officer,” and authorized to carry a pistol, even when not in the actual discharge of the duties of his office.
    [Ed. Note. — For other cases, see Weapons, Cent. Dig. § 10; Dec. Dig. <&wkey;ll(l).
    For other definitions, see Words and Phrases, First and Second Series, Peace Officer.]
    Appeal from Lavaca County Court; P. H. Green, Judge.
    H. M. Tippett was convicted of unlawfully carrying a pistol, and he appeals.
    Judgment reversed, and cause remanded.
    Will T. Bagby, of Hallettsville, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   nARPER, J.

Appellant was convicted of unlawfully carrying a pistol, and his punishment assessed at a fine of $100. The agreed statement of facts is short, and we copy it herein, to wit:

“That at the time charged in the information the city of Hallettsville was a duly incorporated city under the general laws of the state of Texas. That it is the county seat for Lavaca county, Tex. That at said time this defendant, H. M. Tippett, was the duly elected, qualified, and acting mayor of said city. That by virtue of his office he was also judge of the corporation court of said city. That on or about the time alleged in said information, and while holding the official position aforesaid, ho had on or about his person a pistol in said city of Hallettsville. That at the time he had said pistol he was not engaged in the discharge of any special or particular duty as such civil officer.”

It is thus seen that appellant is under the law judge of the corporation court of the city of Hallettsville, that he carried a pistol, and at said time was not in the discharge of any official duty.

Were this an original proposition, the writer would hold that appellant, under the law, was not entitled to carry weapons, except when in the discharge of his official duties; but a different construction has been placed on the Constitution and laws of this state by this court. In Jones v. State, 65 S. W. 92, this court held that, by virtue of section 12 of article 5 of the Constitution, all judges of the courts of this state are not only judicial officers and civil officers, but peace officers also. In that case Jones was a county judge, carried a pistol when not in the discharge of his duties, and this court held that he had a right to carry the pistol by reason of the fact that Pen. Code 1911, art. 476, exempts peace officers from the provisions of article 475, and that the Constitution, by section 12 of article 5, made all judges peace officers. If under the provisions of that section of the Constitution a county judge is a peace officer, then there is no escape from holding that a judge of the corporation court is also a peace officer. Chapter 5 of title 22, Revised Statutes, creates •this court and provides for a judge of the court, and if all judges are peace officers by virtue of the constitutional provision here-inbefore recited, then appellant, by virtue of being judge of the corporation court, would be a peace officer, and authorized to carry a pistol, even when not in the actual discharge of the duties of the office. The Criminal Code authorizes peace officers to carry pistols at any and all times, but other civil officers to carry them only when in the discharge of their duties. The Code makes this distinction. Under the authority of the Jones Case, supra, the judgment is reversed.

Were this an original proposition, the writer would hold that the Legislature, in exempting peace officers from the provisions of article 475, intended and in fact did exempt only such officers as it (the Legislature) had defined as peace officers in article 43 of the Code of Criminal Procedure. It defines as peace officers sheriffs, and their deputies, constables, marshals, or policemen of incorporated cities or towns, and private citizens specially appointed to execute criminal process. We think this the class intended to be exempted by the Legislature, and that judges, being judicial and civil officers, would only be exempt when in the discharge of their duties.

The judgment is reversed, and the cause remanded.
      <&wkey;Ror other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, J.

text:
    Ex parte LOVELL.
    (No. 4301.)
    (Court of Criminal Appeals of Texas.
    Nov. 15, 1916.)
    Bail &wkey;>51 — Grade of Offenses — Evidence —Financial Condition.
    Where the state’s evidence, if accepted by the jury, would make a case of murder in the first degree, the bond should not be nominal, even though the evidence offered by the defendant would show the lower grade of offense, or a justifiable homicide, and, in such case and notwithstanding the relator was possessed of but little property, his bond would be fixed at the sum of $7,500.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. §§ 209, 210, 212; Dec. Dig. &wkey;51.]
    Appeal from District Court, 'Shelby County; W. C. Buford, Judge.
    Habeas corpus by Henderson Lovell. Relator remanded to custody of the Sheriff, and he appeals.
    Reversed, and bail granted.
    W. I. Davis, of Center, and Beeman Strong, of Nacogdoches, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted for murder. He sued out a writ of habeas corpus before Hon. W. C. Buford, who, after hearing the evidence, remanded relator to the custody of the sheriff. After a careful review of the testimony, we think the judge was in error in refusing bond. However, bond should not be granted in the nominal sum requested by relator. It may be true that he may be possessed of but little property; but, in passing on the question of amount of bond required, we should take into consideration the character of case made by the evidence for the state as well as that made by the testimony offered in behalf of defendant. And when the state’s evidence, if accepted by the jury, would make a case of murder in the first degree, the amount of the bond should not be nominal, even though the evidence offered in behalf of defendant would show a lower grade of offense, or a justifiable homicide. Taking into consideration appellant’s financial condition, and the evidence as a whole, his bond is fixed at the sum of $7,500, upon the giving of which in the terms of the law he will be released.

The judgment is reversed, and bail granted.

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


author: DAVIDSON, J.

text:
    Ex parte LOVELL.
    (No. 4300.)
    (Court of Criminal Appeals of Texas.
    Nov. 15, 1916.)
    Appeal from District Court, Shelby County; W. C. Buford, Judge.
    Habeas corpus by Carroll Lovell. Relator remanded without bond, and he appeals.
    Reversed, and bail granted in the sum of $7,500.
    W. I. Davis, of Center, and Beeman Strong, of Nacogdoches, for appellant. C.' C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Relator, having been charged with murder, resorted to a writ of habeas corpus for the purpose of obtaining bail. Upon a hearing under the writ the district court remanded him without bond.

This is a companion case to that of cause No. 4301, Ex parte Henderson Lovell, 189 S. W. 486, this day decided; the facts being substantially the same. Under the authority of that case the judgment herein is reversed, and the sheriff of Shelby county is ordered to take bail in the sum of $7,500, conditioned as the law requires. Upon the execution of this bond the relator will be discharged from custody.

The judgment is reversed, and bail granted in the sum of $7,500.


author: HARPER, 3.

text:
    Ex parte STURROCK.
    (No. 4257.)
    (Court of Criminal Appeals of Texas.
    Nov. 8, 1916.)
    Divobce <5&wkey;269(10) — Alimony — Contempt —Petition—Vebieication.
    A petition, alleging that petitioner’s husband was guilty of contempt in failing to pay her temporary alimony pendente lite, is defective when not sworn to or accompanied by an affidavit, and a contempt order entered thereon, over proper objections, is void.
    [Ed. Note. — Eor other cases, see Divorce, Dec. Dig. &wkey;269(10).]
    Original application by J. W. Sturrock for a writ of habeas corpus.
    Relator ordered discharged.
    J. A. Mooney, of Woodville, for appellant. J. E. Wheat, Co. Atty., of Woodville, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, 3.

This is an original application for writ of habeas corpus praying to be discharged from an order of the county court adjudging relator guilty of contempt in failing to pay the amounts to the wife, required by an order of the court to be paid.

The record discloses the information was filed in the county court of Tyler county on January 8, 1916, charging that relator on or about December 15, 1915, unlawfully, willfully, and without justification did desert and refuse to provide for the support of his wife, Mrs. Eorest Sturrock. On the same day she filed an application asking that the court enter an order requiring relator to support her during the pendency of the case against him charging him with desertion. The court on January 24, 1916, after a hearing, entered an order requiring relator to pay to his wife the sum of $12.50 per month during the pendency of the case against him. The information was filed and order entered by virtue of the provisions of chapter 9a of Vernon’s Ann. Pen. Code 1916, being articles 640a, 640b, 640c, 640d, 640e, and 640f of the Code. The facts show that relator paid the sums ordered to be paid for six months, or to June, 1916, and thereafter had failed to make the payments for the months of June, July and August, amounting to $37.50.

On September 11, 1916, Mrs. Sturrock filed in the county court a petition, in which it is alleged:

“Now comes Mrs. Eorest Sturrock, complainant, and represents to the court that said J. W. Sturrock is and has been guilty of contempt in refusing to obey the order of the court, in that he has failed to contribute the sum of $12.50 per month as required by the order of the court, or any part of said sum, since June 12, 1916, and she moves the court to adjudge the said J. W. Sturrock guilty of contempt since June 12, 19Í6, up to this time.”

This motion, application, or petition is not sworn to by Mrs. Sturrock, nor any other person. Relator was cited to appear and show cause why he should not be adjudged guilty of contempt, and he appeared and filed an answer on September 25, 1916, among other things, “specially excepting to the petition or complaint because same is not sworn to.”

Taking the view we do of this matter, it is unnecessary to state further the provisions of the answer filed. The court overruled this exception, and the hearing, was bad on the unsworn complaint or petition, and the court adjudged relator guilty of contempt, and remanded relator to jail until he should pay to Mrs. Sturrock the sum of $37.50, and all costs incurred in this proceeding.

On September 27, 1916, in vacation, Judge Davidson granted the writ, and this cause was heard by this court on October 11th last. At that hearing relator again urged that the petition or complaint filed in the county court ashing that he be cited to appear and show cause why he should not be adjudged guilty of contempt was not sworn to, and asked that he be discharged. We are of opinion the county court was in error in overruling the exception, and erred in taking jurisdiction of the contempt proceedings when no sworn petition or affidavit had been filed. In Rapalje on Contempt, § 93, it is said:

“In the United States the almost universal practice in this matter is to present to the court an affidavit setting forth the facts and circumstances constituting the alleged contempt, sworn to by some person who witnessed or had knowledge of the offense. Unless such an affidavit be presented, process will not be granted. The issuing of process without the filing of the proper affidavit is erroneous, and the error is not cured by the subsequent filing thereof.”

The courts of this state have adopted and adhered to that rule. Ex parte Duncan, 182 S. W. 313; Ex parte Landry, 65 Tex. Cr. R. 440, 144 S. W. 962; Ex parte Foster, 44 Tex. Cr. R. 425, 71 S. W. 593, 60 L. R. A. 631, 100 Am. St. Rep. 866.

The jurisdiction of the county court not being legally invoked, its order was void, and relator is entitled to be discharged. We do not discuss the other questions raised, but are inclined to the opinion that if the court had jurisdiction, we would not be authorized to review his finding of facts and inquire into the ability of relator to make the payments.

Relator is ordered discharged.
      <fc»For other cases see same topic and KEY-NUMBER in all Key-Numbered 'Digests and Indexes


text:
    HOUSE v. STATE.
    (No. 4250.)
    (Court of Criminal Appeals of Texas.
    Nov. 8, 1916.)
    1. Criminal Law <&wkey;1090(7) — Bill of Exceptions — Necessity—Continuance.
    The refusal of accused’s request for a continuance cannot be reviewed, where no bill of exceptions is reserved to the ruling.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3204; Dee. Dig. &wkey;1090(7).]
    2. Criminal Law &wkey;>9'82 — Evidence—Other Offenses — Suspended Sentence.
    Testimony that warrants are held for accused’s arrest for offenses other than that for which he is being tried is admissible, where his request for a suspended sentence is submitted to the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2500, 2501; Dec. Dig. <&wkey;> 982.]
    Appeal from District Court, Jones County; John B. Thomas, Judge.
    J. L. House was convicted of forgery, and appeals.
    Affirmed.
    Payne & Patterson, of Abilene, for appellant. C. O. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of forgery; his punishment being assessed at two years’ confinement in the penitentiary.

The refusal of appellant’s continuance cannot be revised, in the absence of bill of exceptions reserved to the ruling of the court.

There is but one bill of exceptions in the record, which is as follows:

“The defendant excepts to the ruling of the court wherein he permitted the state, over the objections of the defendant, to elicit evidence from the sheriff of Stonewall county, Texas, and the sheriff of Jones county, Texas, to the effect, that they each held capiases for the arrest of the defendant for other and different offenses than the one in which he is being tried.”

The grounds were that the testimony was irrelevant, immaterial, prejudicial, and would in no way establish the guilt of the defendant, but was highly inflammatory and could serve no other purpose than to inflame the minds of the jury against him. The bill is very indefinite; it does not undertake to state the testimony; but, conceding that the statement that these .officers held warrants for the arrest of appellant for offenses other than that for which he was being tried presented the question, without a showing to the contrary, this testimony may have been admissible on the issue of appellant’s re-, quest for a suspended sentence. The court submitted the issue of suspended sentence to the jury, and this testimony would have been admissible upon that issue.

Finding iio error in the record, the judgment is affirmed.
      itewFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    HOLLINGSWORTH v. STATE.
    (No. 4115.)
    (Court of Criminal Appeals of Texas.
    Nov. 8, 1916.)
    1. Criminal Law &wkey;>673(l), 678(1) — Evidence-Other Acts — Limitation of — Effect — Electio n.
    In a prosecution for incest, where birth of a child to prosecutrix was proved as of such date that the act originally relied on could not have caused .the pregnancy, while the state should be permitted to prove the two acts, the force of the later should be limited, or the state should be required to elect upon which act it would rely.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1580, 1872; Dec. Dig. <&wkey;> 673(1), 678(1).]
    2. Criminal Law <&wkey;417(16) — Evidence—Admissibility.
    A letter of prosecutrix’ father to accused, ■charging him with the offense and demanding certain things, to which accused had replied, indignantly denying the charge, was inadmissible.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 964-967; Dec. Dig. <&wkey;> 417(16).]
    3. Incest <@=ml — Repeated Acts.
    Incest is not a continuous- offense, but each act is a separate offense.
    [Ed. Note. — For other cases, see Incest, Cent. Dig, § 1; Dec. Dig. &wkey;H.]
    4. Criminal Law <&wkey;>780(3) — Trial—Instructions — Accomplices—Corroboration.
    Since the court should, in a prosecution for incest, instruct on necessity of corroboration of the accomplice according to statute, whether requested or not, it is error to charge merely not to convict alone on her testimony, but the jury should be told that she must he corroborated as to the facts by evidence tending to connect accused with the offense.
    [Ed. Note—For other cases, see Criminal Law, Cent. Dig. § 1866; Dec. Dig. &wkey;780(3)J
    5. Ckiminai, Law &wkey;673(2)—Trial—Reception op Evidence — Impeachment — Limiting Evidence.
    Where testimony is introduced that is not original, but is for collateral or impeaching purposes, it will be limited for the purposes for. which it is introduced.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1874; Dec. Dig. i&wkey;673(2).]
    Prendergast, P. J., dissenting.
    Appeal from District Court, Coryell County; J. H. Arnold, Judge.
    Alfred Hollingsworth was convicted of incest, and he appeals.
    Reversed and remanded.
    D. W. Odell, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of incest, his punishment being assessed at 5 years’ confinement in the penitentiary.

This is the second appeal. The record is somewhat changed from what it was on the former appeal, found reported in 182 S. W. 465. The prosecutrix is alleged to be the niece of appellant. The facts show that she was about 20 years of age, living at appellant’s house, and became ultimately the mother of a child. On the former trial,- by -referring to the opinion in that case, - it will be seen, she testified, in substance, that appellant had not had intercourse with her, but that Dollins was the author of her shame and the father of her child. On this trial she testified, denying that Dollins was the author of her shame, but refused absolutely to give the name of her betrayer. The state relied upon facts and circumstances to show that appellant was guilty. The girl lived at his house, and, of course, opportunities were afforded. Easter testified that he saw appellant and the girl in the act of sexual intercourse between sundown and dark in a seed-house, a crib; she had gone to milk the cows, and appellant had gone to where she was, and they got into this seedhouse and had intercourse.

When all the testimony was in, or when it developed, there must have been more than one case of intercourse by somebody with the girl, the defendant asked that the state be required to elect upon which transaction it would rely for a conviction. This the court refused. The further proposition was made by appellant in the trial court and here, substantially, that if an election should be made,' and if not, then the testimony of the extraneous act should be limited. The writer has not agreed with the majority of this court either prior to 1911 or since with reference to this matter. It has been held by the majority of this court prior to 1911 that acts of this sort were admissible, but should, be limited by the judge. The majority of the court followed that rule in Battles v. State, 63 Tex. Cr. R. 147, 140 S. W. 783. I do not care here nor now to review that question. Under my view of the law the state was not entitled to prove but one act; under the majority rule they were entitled to prove it, but the force and effect of the testimony should have been limited. For this reason this judgment should be reversed.

The continuance will not be discussed, for upon another trial the testimony may be secured; if not,, it will be presented in a different light.

While the trial was in vogue the state offered in evidence a letter written by W. T. Dunn, father of prosecutrix, to appellant. Dunn was the father of the girl, appellant being her uncle. In this letter Dunn demanded of him certain things because he says appellant had ruined his daughter. Of course Dunn knew nothing about it, except what he had heard from some source. Appellant indignantly refused to have anything to do with it, and vigorously denied it. This testimony, under the circumstances, was not admissible. Had he responded in some way showing his guilt, or the fact he might have been guilty so- it may have been used as a criminating fact, we might have a different proposition, but he indignantly refused to have anything to do with it, and denied any connection with the matter, asserting his innocence. Upon another trial this testimony should not be admitted.

Oscar Easter testified that he saw defendant and the girl in the act of sexual intercourse in the seedhouse alluded to previously. When the witness had finished appel-. lant made a motion to exclude this testimony. This the court declined, and let it remain. Under the Battles Case, supra, and cases of the same character, this testimony was admissible, but it should have been limited for the purpose for which it was admitted, whatever-that may have been.

The girl gave birth to a child on the 29th of October. Easter swears that he saw them in the act of intercourse in May. Of course appellant could not have been the father of that child if that was his only act of intercourse. It is evident, and the facts will show, as well as the laws of nature demonstrate, that she could not have given birth to a fully developed child from an act of intercourse in May. It necessarily would have occurred as early as the latter part of January or some time in February. This testimony should have been either limited, or the state required to elect upon which act it would rely for conviction and the other act limited. Incest is not a continuous of--fense, and it would seem under the statute that each act of intercourse would be a separate offense. When the defendant requested the state be required to elect, it should have been granted or, failing to do that, the testimony should have been limited, but the court did neither. Upon another trial this matter will be properly looked after in the charge of the court, if the testimony is admitted.

The court charged the jury on accomplice testimony as follows:

“If you should believe from the evidence, beyond a reasonable doubt, that the defendant, Alfred Hollingsworth, had carnal intercourse with the prosecutrix, Cassie Dunn, then you are instructed that Cassie Dunn would be an accomplice *to the alleged crime of incest, and you cannot find the defendant guilty alone upon the testimony of the said Cassie Dunn.”

This is the court’s only charge on accomplice testimony. Proper exceptions were reserved in a timely way that presents the question squarely for decision. The court, qualifying the bill, states that he gave it more fully, and evidently he did as it is set out in the bill of exceptions; that appellant excepted to it for several reasons, and the court changed the wording of the charge, leaving it as above quoted. He states that the reason he did that was appellant insisted on charging the statute. The court should charge the statute with reference to the offense whether asked or not. The law requires the court to give the law applicable to all the facts of the case. Some of the reasons here urged by appellant against the charge as originally written are that it was on the weight of the evidence and not applicable to the facts in the case, and that the court’s charge should have conformed itself to the statute. The statute requires, where the girl is an accomplice, that she must be corroborated not only as to the fact of the intercourse, but as to the facts and circumstances, or sufficiently at least to corroborate her tending to connect the defendant with the offense about which she testified. The court should not only have charged that if the jury should believe she had had intercourse with defendant that she would then be regarded as an accomplice, but in that event her evidence should show him guilty, and they must believe her testimony true and the corroborating evidence must tend to connect him with the offense committed. It is not the writer’s purpose to go into a detailed statement of the law and argument and reasoning along this line. This charge did not comply with the law, and the judge evidently in his qualification thought, or seemed to think, that he was going wrong because the appellant had invited the error. Reading the bill and his qualification, we cannot agree with it. Appellant insisted upon a charge on the law as the statute demanded. This the court did not give. Among other things he mentioned specially was that the court should charge the jury that if her testimony was true and the jury should believe it, there must be corroborating evidence tending to connect the defendant with the commission of the offense.

There were several charges asked by appellant, which were refused. We are' of opinion that some of these charges should have been given.

There are other matters in the case, but enough has been said to indicate how the case should be tried upon another trial, gome of the testimony admitted ought to have been limited, but we deem it unnecessary to go into a detailed statement of this. The court and, the attorneys for the state and appellant will understand that where testimony is introduced that is not original testimony, but is introduced for collateral or impeaching purposes, it will be limited for the purposes for which it is introduced. This is an old familiar rule, and it seems like it would be unnecessary to discuss it.

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

PRENDERGAST, P. X, dissents.
      <&wkey;>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    JONES v. STATE.
    (No. 4237.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.)
    Criminal Law <&wkey;1184 —Appeal —Amendment of Judgment.
    In prosecution for keeping a disorderly house, where the verdict of guilty assessed a fine of $200 and 20 days’ imprisonment, judgment ordering that the state do have and recover of defendant all costs, “together with said fine of $200,” will be amended on appeal to include the jail imprisonment.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 4407, 4635; Dec. Dig. <®=> 1184.]
    Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.
    Hugh Jones was convicted for keeping a disorderly house, and he appeals. Judgment
    amended and affirmed.
    C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant ■ was convicted for keeping a disorderly house. The record is before us without a statement of facts or bill of exceptions. The punishment assessed is a $200 fine and 20 days’ imprisonment in the county jail. The judgment seems to be incomplete. The verdict of the jury assessed a fine of $200 and 20 days’ imprisonment. The judgment orders that “the state of Texas do have and recover of the defendant all costs in this behalf incurred, together with said fine of $200.”

The judgment will be amended, so as to include the jail imprisonment, and affirmed.
      <i&wkey;For ocher cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PRENDERGAST, P. J.

text:
    DIAZ v. STATE.
    (No. 4227.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    1. Criminal Law <&wkey;1159(3) — Appeal — Scope.
    In the face of directly conflicting evidence, whether accused sold liquor unlawfully, or merely procured it for prosecuting witness, is for the jury, and the court on appeal cannot disturb the verdict.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. § 3076; Dec. Dig. <&wkey;>1159(3).]
    2. Criminal Law <&wkey;1090(19) — Appeal — Scope — Reservation oe Exceptions.
    The court on appeal will not consider separate grounds in a motion foi; new trial, when that is the only way exception is taken to the proceedings during trial.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2804, 3204; Dec. Dig. <&wkey; 1090(19).]
    3. Criminal Law <&wkey;1122(l) — Appeal — Scope — Record .
    Though the record contains a purported special requested charge, yet, if it fails to show that it was presented to or acted on or refused by the judge, and there is no bill to the court’s refusal, nor objection to the charges given, no question thereon is presented for review.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 2940, 2944; Dec. Dig. <&wkey; 1122(1).]
    Appeal from District Court, Kleberg County; W. B. Hopkins, Judge.
    Lupe Diaz was convicted of unlawfully selling intoxicating liquor in prohibition territory, and he appeals.
    Affirmed.
    Pope & Sutherland, of Corpus Christi, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of unlawfully selling intoxicating liquor in prohibition territory.

He contends the evidence was insufficient to sustain the verdict. We have carefully read the testimony, and conclude that it was sufficient; the state’s witness testifying positively to a sale by appellant to him as alleged in the indictment. Appellant denied making a sale, but claimed that he procured at witness’ instance the liquor and delivered it to him. This was a question of fact for the jury and the trial judge, and not for this court. Hence we cannot disturb the verdict on that ground.

The only bill of exceptions in the record is to the court’s overruling his motion for a new trial. In this motion he sets up three separate and distinct grounds. The uniform practice of this court is not to consider the separate grounds in a motion for a new trial when that is the only way exception is taken to the proceedings during the trial.

There appears in the record what purports to be a special charge requested by appellant, but it in no way shows that it was ever presented to the judge, or that the judge ever saw or acted on it during the trial. There is no bill in any way to the court’s refusal to give it. No objection was made to the court’s charge for either claimed error of commission or omission. Therefore, under the very terms of the statute and the many decisions of this court thereunder, no question as to said charge is presented which this court is authorized to review.

The judgment is therefore affirmed.
      <®=oFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and. Indexes


author: PRENDERGAST, P. J. HARPER, J.

text:
    MATTHEWS v. STATE.
    (No. 4144.)
    (Court of Criminal Appeals of Texas.
    Oct. 4, 1916.
    Rehearing Denied Oct. 25, 1916.
    Dissenting Opinion, Nov. 1, 1916.)
    1. Intoxicating ^Liquors <&wkey;205(2) — Criminal Prosecutions — Indictment — Sueei-cienct.
    An indictment for selling intoxicating liquors. in prohibition territory, which recited the holding of an election, the entry and publication of. the order of the commissioners’ court, and the sale by defendant thereafter, was sufficient; the date of the election and the putting the law in force being immaterial further than to allege that the law was in force before the alleged sales were made, and it being unnecessary to set forth the orders for the election.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 225; Dec. Dig. <&wkey; 205(2).]
    2. Witnesses &wkey;j358 — Character — Cross-Examination.
    In a prosecution for selling intoxicating liquor in prohibition territory, where a witness for defendant testified that the general reputation for truth and veracity of the principal witness for the state was bad, it was proper on cross-examination for the county attorney to inquire whether such witness was a drinking man.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1159, 1160; Dec. Dig. &wkey;358.]
    3. Criminal Law <3=»1170% (5) — Appeal and Error — Harmless Error — Examination oe Witness.
    Where such witness on cross-examination denied in substance that he was a drinking man, admitting that occasionally he took a drink, any error in permitting such cross-examination was harmless as not prejudicing the defendant.
    [Ed. Note. — For other cáses, see Criminal Law, Cent. Dig. § 3133; Dec. Dig. <&wkey; 1170% (5).]
    4. Criminal Law <&wkey;377 — Evidence—Character oe Accused.
    In a prosecution for selling intoxicating liquor in prohibition territory, unless the state has attacked defendant’s general reputation for truth and veracity or has attempted to impeach him by proving contradictory statements, he is not entitled to introduce evidence of his good reputation for truth and veracity.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 836, 837, 840; Dec. Dig. &wkey;377.J
    5. Witnesses <&wkey;268(6) — Cross-Examination.
    In a prosecution for selling intoxicating liquor in prohibition territory, where a witness in behalf of plaintiff testified that he had seen whisky in defendant’s room on only one occasion and then only a half pint, it was proper for the state on cross-examination to elicit the admission that such witness on the day of defendant’s arrest subsequent to tbe offense charged in the indictment had seen five pints in the defendant’s room.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. § 936; Dec. Dig. &wkey;268(6).] Harper, J., dissenting.
    Appeal from District Court, Collin County; M. H. Garnett, Judge.
    J. M. Matthews was convicted of selling intoxicating liquors in prohibition territory, and appeals.
    Affirmed.
    J. A. Dial, of Sulphur Springs, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for pursuing the occupation or business of selling intoxicating liquors in prohibition territory, with the lowest penalty assessed.

The evidence by the state’s witnesses, which, was evidently believed by the jury, was amply sufficient to sustain the conviction, although disputed on some material points by others. Appellant now attacks the state’s principal witness vigorously as unworthy of belief. There is more or less testimony in the record supporting the testimony of this witness. It is evident this attack was also made in the court below. The jury and the trial judge heard his and all the other testimony and were more competent to judge of the truth of his testimony than this court can possibly be. They are by law made the exclusive judges of the credibility of the witnesses and the weight to be given their testimony. We cannot legally disturb the verdict.

With the proper preliminary and concluding allegations, the indictment, which was filed November 26, 1915, alleged, in substance, that on November 1, 1915, in Collin county, Tex., and after the qualified voters of said county had determined at an election held in accordance with the law that the sale of intoxicating liquors should be prohibited in said county, and after the commissioners’ court of said county had made and entered an order to that effect, and after said order had been published by the county judge as required by law, appellant did then and there unlawfully engage in and pursue the occupation and business of selling intoxicating liquors in violation of said law, which law was then and there in full force and effect in said county, and, while so engaged in said occupation and business, he did then and there unlawfully make five different sales of intoxicating liquors to J. W. Pierce and other sales to divers other persons to the grand jurors unknown; all of said sales being in violation of said law and within three years next preceding the filing of the indictment, and said business and occupation not then and there being permitted by law.

We think this indictment is sufficient under the statute and decisions,, and that the cases cited by appellant (Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 125; Slack v. State, 61 Tex. Cr. R. 372, 136 S. W. 1073, Ann. Cas. 1913B, 112; Stephens v. State, 63 Tex. Cr. R. 382, 139 S. W. 114; Leonard v. State, 68 Tex. Cr. R. 549, 152 S. W. 632; and Mills v. State, 178 S. W. 367), instead of being authority for holding said indictment bad, have the contrary effect. In this offense, the date of the election and.putting the law in force is immaterial further than to allege that the law was in force before the alleged offense was committed, which was done in this case. No authorities hold that in such an indictment it is necessary to give the orders for the prohibition election. The allegations made in this instance include all that was necessary on that point.

Mr. Smart, one of appellant’s witnesses, testified that the general reputation of Mr. Pierce, the state’s material witness, for truth and veracity, was bad. On his cross-examination by the state, this occurred: The county attorney asked him if he was a drinking man. He answered: “What do you call a drinking man?” The county attorney replied: “A man that drinks whisky whenever he can.” Defendant objected, because it was on an immaterial matter and would not affect his credibility. The county attorney stated that it might show his sympathy, and the court stated he would not compel the witness to answer, but he might answer if he wanted to, or he might decline to answer. The witness then stated: “I don’t know what you call a drinking man.” The county attorney repeated in substance what he had stated before. The witness answered: “I don’t drink whenever I can get it, but I might take a drink once in a while.” We think this was not improper cross-examination under the circumstances of this case; but, even if it was, the answer of the witness would show no injury to appellant.

The state contended that appellant on Saturdays want to Dallas on the Interurban, returning that night with more or less whis-ky, and that he kept it from time to time in his room at his boarding house. The state’s main witness had testified to finding several bottles of whisky in a box under appellant’s bed in his room pending the time the state’s witness testified appellant had made the respective sales to him. Appellant introduced his landlord, Mr. Heffner, who testified that he never saw, and in effect appellant never kept, any whisky in his room, and that he never found any therein. The state, in crossing this witness, undertook to show by him that appellant went to Dallas every Saturday night and returned therefrom to McKinney about midnight. Appellant objected to this character of examination of his landlord. ’ However, the landlord testified he did not know whether he went to Dallas or not; in effect, he did not know where he went on Saturday nights. This testimony, like that passed upon just above, was proper cross-examination, and shows no injury to appellant. The answer of the witness failed to prove the state’s contention on this point, .and his bill presents no error. Hart v. State, 57 Tex. Cr. R. 24, 121 S. W. 508; Warthan v. State, 41 Tex. Cr. R. 887, 55 S. W. 55; Baker v. State, 45 Tex. Cr. R. 396, 77 S. W. 618; Harding v. State, 49 Tex. Cr. R. 603, 95 S. W. 528; Sweeney v. State, 65 Tex. Cr. R. 598, 140 S. W. 883, and eases cited.

I-Iis sixth bill, complaining of the question by the county attorney on cross-examination of his witness McCowan, presents no reversible error.

Appellant’s seventh and eighth bills of exceptions are very lengthy. They contain some . 19 pages of typewritten questions and answers of appellant himself on cross-examination by the state, and each winds up with an objection to the court’s refusal to permit him to have two witnesses testify, respectively, to his good general reputation for truth and veracity. The state objected to these witnesses so testifying because his said general reputation was not an issue. The court sustained the objection, stating that he would not permit the defendant to introduce evidence to sustain his reputation for truth and veracity unless such reputation had been attacked. We think that neither bill shows that the witness was impeached, or attempted to be impeached, in such a way as would authorize him to introduce witnesses to establish his reputation in the respect mentioned. The rule is well established that, if the state had attacked his general reputation for truth and veracity by any witness, or had attempted to impeach him by proving contradictory statements, then he would have been permitted to have introduced such proof; but, until such contingency arises, the fact that he gives testimony disputing that offered by the state would make no such testimony admissible. Pettis v. State, 68 Tex. Cr. R. 224, 150 S. W. 790; Lacy v. State, 63 Tex. Cr. R. 193, 140 S. W. 461; Allen v. State, 64 Tex. Cr. R. 227, 141 S. W. 983; Williams v. State, 67 Tex. Cr. R. 293, 148 S. W. 763; Downing v. State, 61 Tex. Cr. R. 523, 136 S. W. 471; Wisnoski v. State, 68 Tex. Cr. R. 382, 153 S. W. 318; McCue v. State, 170 S. W. 285; and many other cases collated in 1 Branch An. P. C. p. 115.

As stated above, the state’s main witness had testified to finding liquor stored in appellant’s room under his bed pending the time he testified appellant made the sales to him alleged in the indictment. Appellant not only denied this, but he introduced Mr. Heffner, his landlord, who on direct examination supported appellant in his testimony on this point. The state then took him on cross-examination on this point, and the witness testified that he had seen five pints of whisky in his room on the very day he was rearrested ; the court qualifying the bill' as follows:

“The witness W. A. Heffner was introduced by the defendant, and defendant’s attorney proved by him that Mr. Matthews, the defendant, was rooming at his house when he was arrested on the charge of pursuing the occupation of selling intoxicating liquor, and continued to room there after he made bond, and was rooming there when he was surrendered by his bondsmen, and then proved by said witness that he had seen no whisky in said Matthews’ room but one time during the entire time that Matthews was at his house, and that was during Ohi-ist-mas, and that was something like a half pint with which they made eggnog.
“After the defendant had elicited on direct examination from the said witness the facts, as above stated, the testimony that' he had only seen whisky in defendant’s room one time, and that was the half pint Christmas, the court then permitted the state to prove by said defendant’s witness on cross-examination that he had seen five pints in his room on the very day that defendant was rearrested.”

We think this was legitimate cross-examination of this witness under the circumstances, and, as qualified by the court, his bill presents no error.

We have not discussed each of appellant’s bills of exceptions, though we have considered them all. None of them present any reversible error.

The judgment is affirmed.

HARPER, J.

(dissenting). I cannot give my assent to the affirmance of this case, and respectfully enter my dissent for the reasons hereinafter stated. Appellant was prosecuted for pursuing the occupation of selling intoxicating liquors and making two sales to J. W. Pierce. By this witness Pierce alone is appellant shown to have made any sales of intoxicating liquors. No other witness testifies to any sale. This witness testifies to purchasing intoxicating liquor from appellant on five different occasions from October 11th to October 25th. He admitted that he had theretofore been indicted in Grayson county charged with theft of a diamond, that he had been indicted charged with theft of a horse in Fannin county, that he was indicted in Hunt county charging him with forgery, and that he had been arrested in that county charged with burglary, but testifies he was convicted in none of those cases. He also testified that he was now under indictment in Titus county charged with embezzlement, and also under indictment in the same county charged with forgery; that these latter two cases were still pending against him. He also testified that he was employed to come to Collin county to catch violators of the prohibition law, and received $2.56 a day and all expenses, including the price of liquors he says he purchased. The record discloses that he received $102 from October 10th to October 25th.

J. W. St. Clair, T. C. Norman, T. E. Smart, and J. R. Nelson testify they know the state’s witness, and his reputation for truth and veracity in the community in which he lived is bad. It is upon the testimony of this witness that the state seeks to and will , incarcerate ' appellant in the penitentiary. However, the jury apparently believed him, and we perhaps should "not disturb the verdict if there was no error in the record; but, when the state relies upon testimony of this character to take away from a citizen his good name and liberty, we should closely scrutinize the record, and if any error that could have been hurtful and harmful is committed the case should be reversed.

As before stated, no one testifies to a sale of whisky by appellant except the witness Pierce. Appellant takes th’e stand and in most positive language denies ever making a sale to Pierce. He testifies on one occasion he remarked in Pierce’s presence that he was going to Dallas, and that Pierce gave him $2.60 to bring him back some whisky and beer, and this he says he did. Walter True testified that he was present when a man about the middle of October requested appellant to bring him some whisky and beer; that four or five were present when this occurred, but he could not identify the man who made the request. Appellant testifies that on another occasion he met state’s witness Pierce at the Savoy barbershop, and they all threw in and made up $2 and purchased the whisky from Bill Stinson, and on still another occasion appellant, Mr. Duddy, and Pierce made up a dollar and purchased some whisky from a negro at Ed Oates’ restaurant; that Pierce got the whisky from the negro; that at no other time and under no other circumstances did he and Pierce have any dealings, and he never at any time sold any whisky to Pierce. This made a clear issue between the testimony of the two, and the. state on cross-examination, to render appellant, as little entiJ tied to credit as a witness as Pierce had shown himself to be, rigidly cross-examined appellant and asked him if he did not testify that they secured one bottle of the whisky from Bill Stinson, and if he did not know that Bill Stinson was under indictment for selling intoxicating liquors, and that Stinson was then a fugitive from justice, all of which, questions the court, over objection, required the witness to answer, and, after he had answered, propounded to ' him the following question and statement:

“And you now come and say that this man who has gone from here, and who is also under indictment, that the whisky was bought from him? And that is just as true as anything else you, have testified to, isn’t it?"

The state then took him up and asked him '■ about the bottle of whisky that appellant testified was purchased by Pierce, Duddy, and himself from a negro,, and had him testify .'that he did not know the name’of the negro, but they were told by Abe Gunn that they could get the whisky from the negro, and further that Abe Gunn was then under indictment for selling intoxicating liquor.

The state next asked him, “You have been convicted, haven’t you, for transporting liquor into the state of Oklahoma?” and when appellant answered, “No,” staters counsel asked him, “Have you been . charged with transporting liquor into the state of Oklahoma?” The witness answered, “No.” State’s counsel then asked appellant if in the habeas corpus trial for bond in this case he did not testify that “he had pleaded guilty to transporting liquor into the state of Oklahoma.” The witness answered emphatically, “No, I did not,” and when he so answered state’s counsel remarked, “That is just as true as anything else you have sworn to.” State’s counsel then asked appellant, “I will ask you if you have not been charged with bank robbery in the state of Arkansas,” to which question he answered, “No.” State’s counsel then asked him if “he had not been separated from his wife for the past eighteen months.” The court sustained the objection to this last question, and the witness was not required to answer it, and the jury and this court do not know what his answer would have been. Many questions of similar character and kind were permitted to be asked, but these are sufficient to present the question upon which I enter my dissent.

This was unfair examination if the state did not think it could prove, and would offer -to prove, that the matters had occurred. The record discloses the state offered no proof that appellant had been guilty of either of the things inquired about, and the questions propounded were therefore merely propounded to impair appellant’s credit as a witness. Had the state been in position to prove that appellant had been indicted for these different offenses, it might be and probably was proper cross-examination; but, after the state had thus sought to impair his credit as a witness, appellant offered as a witness O. B. English, who testified he had known appellant for 15 years, and J. M. Cox, who. testified that he had known appellant since he was a small boy, and that he (Cox) was county clerk of his home county. After they had so testified, they each were asked “if they knew appellant’s reputation for truth and veracity in the community in ■ which he lived,” and the court sustained the state’s objection to such question. The bill shows they, and each of them, would have testified , they knew the reputation of appellant, and his reputation for truth and veracity was good.

This is the error the court fell into. After permitting the state to so severely assail appellant on cross-examination in order to impair his credit as a witness before the jury, appellant was entitled to put his reputation for truth and' veracity in issue, and td have proven that it was good by the witnesses named. Under the circumstances, in the writer’s opinion, this was such error as should result in a reversal of the case. Matthews, appellant, was raised in Hopkins county, and has lived in Collin county for a little more than a year only, and the witnesses who had known him from-his childhood were the ones he desired and did call to prove his reputation. In the case of Butler v. State, 52 Tex. Cr. R. 531, 107 S. W. 840, it is held that, where the cross-examination brings the case within the exception which provides, where there is an attack on the evidence given by appellant, statements involving imputation of bad faith and the assertion of crime against him, and where the cross-examination involves an attack upon the integrity and truthfulness of his substantial defense, it is error to exclude evidence of good reputation for truth and veracity. If there is any case which could be brought within that rule without the introduction of direct impeaching testimony, we think the facts copied above this to be such a case. It charged crime in two instances; recent fabrication of explanation after other witnesses had left, etc. See, also, Thompson v. State, 74 Tex. Cr. R. 146, 167 S. W. 345; Wilkerson v. State, 60 Tex. Cr. R. 388, 131 S. W. 1108, Ann. Cas. 1912C, 126; Alderson v. State, 53 Tex. Cr. R. 527, 111 S. W. 738. In the case of Walker v. State, 178 S. W. 359, the only way it was sought to discredit the witness Mrs. Bessie Turpin was to ask her if she had not made statements contradictory to her testimony on the trial as to the age of the girl. Her testimony as to this matter was permitted to go uncontradict-ed. No witness was placed on the stand to impeach Mrs. Turpin, yet, because the appellant on cross-examination had thus cross-examined her, this court held the state could not support the witness. The writer did not’dissent in that case because he had entered a dissent to such a rule of law in Thompson v. State, 74 Tex. Cr. R. 147, 167 S. W. 345, and other cases, and did not deem it proper to incumber the reports with a continuous dissent on the same proposition: But he respectfully desires to enter his dissent to it being held no error to permit the state to support its witness under such circumstances, and yet refuse to permit a defendant to give in evidence supporting evidence under similar circumstances.

The record discloses appellant was arrested the latter part of October, 1915, charged with this offense, and bound over to the grand jury. His room was then searched and no intoxicating liquor found. The grand jury returned a bill against him November 26th and he was rearrested and gave bond. In February following one of his bondsmen surrendered him, and his room was again searched in February, and the state was permitted to introduce evidence that in February (over three months after he was charged with having committed this offense) the sheriff found in his room five pint bottles of Joel B. Frazier whisky, and the five bottles were introduced in evidence. The writer is aware that there are several cases holding (and we would not be understood as dissenting from that rule) that, if whisky is found in one’s possession contemporaneous with the alleged violation of the law, such fact is admissible in evidence; and in one case it was held a month’s time was not too remote, but now the rule is extended to over a period of 3% months thereafter. Such has not heretofore been the rule according to the writer’s understanding, and, if 3% months thereafter is not'too remote to be held to be contemporaneous with the transaction, we are at a loss to understand what time limit will be held to be not contemporaneous. The trial court, in his qualification to the bill, seems apparently to think it was rather remote, and places his ruling on a different ground. He says appellant placed W. A. Heffner, with whom he boarded while in McKinney, on the stand to prove that he was in the room occupied by him every day, and that appellant had no whisky in the room at any time except Christmas, when he had a half pint, with which they made an eggnog, and he permitted the state to prove that the sheriff found five pints in the room when he rearrested appellant in February — this to impeach the witness Heffner. Unfortunately for the state’s contention, though, the record discloses (if witnesses are to be believed) the whisky was not appellant’s and had not been placed there by him. He so testified, and Frank McCowan, a lineman of the Texas Traction Company, swears the whisky belonged to him; that he placed it in appellant’s room, and that it was in his tool sack; that he had placed it there until he came back off the line. The state offers no proof to contradict this evidence; all it did was to ask McCowan:

“Now, when did you decide that you could come up here and tell that you put this whisky in this man’s room that you had never met before?”

The asking of such question would not raise a conclusive presumption that he and the other witnesses had sworn falsely about the matter, but if it be conceded that it was appellant’s whisky that was found in the room in February, 1916, when he had been arrested and charged with an offense in October, 1915, and the testimony was admissible for the purpose of impeaching Heffner, the court, while stating the testimony was admitted for that purpose in approving the bill filed after the adjournment of court, did not so treat the testimony and thus limit it during the trial of the case nor in his charge to the jury. The testimony was admitted, and no limitation placed thereon in the charge or otherwise, when the rule of law is:

“If the impeaching testimony can be used by the jury to establish any fact in the case, other than as affecting the credit of a witness, it is error to fail to limit it in the charge of the court.” Rowan v. State, 57 Tex. Cr. R. 625, 124 S. W. 668, 136 Am. St. Rep. 1005, and cases cited in section 873, Branch’s Crim. Law.

There are a number of other bills of exception in the record; but, as the above were all that I gave my Brethren notice I would dissent on at the time the original opinion was handed down, I will hot discuss the others. I want to unequivocally put myself on record as favoring one rule of law ■bath for the state and for the defendant.


text:
    CRIPPEN v. STATE.
    (No. 4196.)
    (Court of Criminal Appeals of Texas.
    Nov. 8, 1916.)
    1. CRIminax. Law &wkey;1173(3) — Appeal and Error — Instructions—Harmless Error.
    The erroneous refusal of instructions on the issue of assault with intent to kill will not be reviewed, where conviction'was for the lesser offense of aggravated assault.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 3166; Dec. Dig. <S&wkey;1173(3)J
    2. Criminal Law &wkey;>390 — Evidence—Admissibility.
    Where testimony of defendant on trial for assaulting a police officer with intent to- kill tended to show malice of such officer in arresting defendant without warrant, evidence of the rules of the police department and its custom. of making arrests without warrants held admissible to show good faith of the officer assaulted.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 858; Dec. Dig. <&wkey;390.]
    3. Criminal Law <&wkey;390 — Evidence—Admissibility — Ordinances.
    For the same reason, an ordinance, authorizing the marshal to make arrests without warrant, was admissible, such ordinance applying, not only to the marshal, but to all policemen under him.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 858; Dec. Dig. <§^>390.]
    4. Criminal Law <&wkey;390 — Evidence—Admissibility — Ordinances.
    So, also, an ordinance, making it an offense for any person to appear in certain public places in company with a common prostitute, was admissible as showing good faith of the officer in arresting defendant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 858; Dec. Dig. <©=»390.]
    5. Arrest &wkey;>63(l) — Searches and Seizures <&wkey;7 — Authority to Arrest without Warrant — Validity op Statute.
    Statutes, authorizing arrests without warrant by peace officers, and authorizing municipal corporations to establish rules authorizing such arrests, are not invalid by reason of Const, art. 1, § 9, prohibiting unreasonable seizures.
    [Ed. Note. — For other cases, see Arrest, Cent. Dig. §§ 145, 151-156; Dee. Dig. <&wkey;63(l); Searches and Seizures, Cent. Dig. § 5; Dec. Dig. <&wkey;7.]
    6. Homicide <&wkey;158(l) — Evidence—Admissibility.
    In a prosecution for assault with intent to kill, evidence of threats made by defendant prior to the assault are admissible.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 293 ; Dec. Dig. <&wkey;>158(l).]
    7. Criminal Law &wkey;>778(5), 815(9) — Trial— Instructions — Self-Defense.
    In a prosecution for assault with intent to kill, an instruction that defendant was entitled to be acquitted if the jury believed that he committed the assault as a means of defense, believing that he was in danger of losing his life or of serious bodily injury, held not erroneous as ignoring' the doctrine of reasonable doubt or shifting the burden of proof.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1849, 1967; Dec. Dig. <&wkey;> 778(5), 815(9).]
    8. Homicide <&wkey;300(7) — Trial — Instructions — J ustipication.
    In a prosecution for assaulting a .police officer with intent to kill, a, requested instruction that the arrest of defendant without warrant by such officer was adequate cause, justifying or excusing the assault, was properly refused, where the assault was committed about 25 minutes after defendant’s arrest, and after his confinement thereunder had terminated.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 622; Dec. Dig. <&wkey;>300(7).]
    9. Criminal Law &wkey;>829(5) — Teial — Instructions— Justification.
    In a prosecution for assaulting a police officer with intent to kill, where the court properly submitted the issue of self-defense without limitation by a charge on the issue of provocation, it was not error to refuse an instruction that defendant, after being arrested by such officer without warrant, had a right to arm himself and seek such officer to demand an explanation.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dee. Dig. &wkey;829(5).]
    10. Homicide <&wkey;295(l) — Trial — Instructions — Provocation.
    In a prosecution for assaulting a policeman with intent to kill, where the assault was committed subsequent to defendant’s arrest without warrant by such officer, a requested instruction that such arrest was illegal, unwarranted, and in. effect a species of aggravated assault, constituting great provocation, was properly refused.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 606, 607; Dec. Dig. &wkey;295(l).]
    11. Criminal Law <&wkey;783(l) — Trial — Instructions.
    In a prosecution for assault with intent to kill, an instruction that uncommunicated threats against the life of defendant may be considered in ascertaining the condition of mind of the party assaulted at the time of the assault held_ erroneous, in not permitting the jury to consider such uncommunicated threats for other purposes, particularly as corroborating evidence of communicated threats and as shedding light upon the question of who was probably the aggressor.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1872-1874, 1876; Dec. Dig. &wkey;783(l).]
    12. Homicide &wkey;271 — Trial — Province oe Court and Jury. . |
    . In a prosecution for assault with intent to kill, the issue as to who began the difficulty is a question for the jury which the court cannot decide, nor take away.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 565; Dec. Dig. &wkey;271.]
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    Wesley Crippen was convicted of aggravated assault, and appeals.
    Reversed and remanded.
    Williams & Williams and Edgar Harold, all of Waco, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Under an indictment and trial for an assault to murder J. R. Spillers, a police officer of Waco, appellant was convicted of an aggravated assault, and his punishment assessed at two years in the county jail.

The testimony on behalf of the state by a preponderance would show a most aggravated case of an assault with intent to murder, an attempted assassination, and would show such, a state of fact as to exclude manslaughter if Spillers had been killed. On the other hand, by his own testimony, supported by some other, appellant showed such a state of fact as to show that if he had succeeded in killing Spillers, his offense would have been no higher than that of manslaughter, thereby raising the issue of aggravated assault. On this point the jury acquitted him of assault to murder, and found him guilty of aggravated assault, as stated. Appellant introduced testimony of threats against him by Spillers, both communicated and uncommunicated. In his testimony, Spillers denied all such threats, testifying that he made none of them. Appellant by practically his testimony alone raised the issue of self-defense from apparent danger. The testimony of the state by Spillers and other eyewitnesses would exclude self-defense.

Appellant assigns a large number of claimed errors — a good many to the admission of testimony, others, to various paragraphs of the court’s charge, and still others to the court’s refusal to give some of his special charges. As most of his refused charges and some of his complaints as to the court’s charge were solely with reference to the question of an assault with intent to murder, and as he was acquitted of that offense, they pass out and are not discussed.

The shooting occurred on the night of July 28, 1915. In the claimed discharge of his official duties Spillers arrested appellant on October 1, 1914, for a minor offense against the city ordinances of Waco. Again, .early in December following, he again arrested him for the violation of another city ordinance. The arrest in both instances was made without Spillers having a warrant for appellant’s arrest at the time. Appellant was tried the next day after his first arrest in the city court and acquitted. He was tried under the second arrest on December 8, 1914, and convicted. He appealed that case to the county court. The charge in that case .was vagrancy. After the said appeal, twice before July 28, 1915, appellant forfeited his bond. On July 28th, when his case was again called, at which time it was set for trial, he failed to appear, and his bond was again forfeited. Spillers was a witness against him in that case, and was present when this last forfeiture was taken. The assistant county attorney in charge of that prosecution and other officers in the sheriff’s department at the time instructed Spillers that if he could find appellant, to again arrest him so- as to have him present the next morning for trial. No warrant for his arrest was issued, and Spillers had none that night when he again arrested him in compliance with his instructions from said officers. He found him that night in the reservation district of Waco and arrested him. Appellant did not resist arrest at that time, nor did he attempt to escape while arrested and in custody. When arrested on this occasion, appellant by his own testimony abused and cursed Spillers in the most outrageous way, and offered and wanted to fight him, if Spillers would take off his pistol. Spillers called for the officer in charge of the hoodlum wagon for the purpose of transferring him to the jail and confining him.therein. The officer with this wagon soon appeared. Appellant .got on it and with that officer went to jail. Spillers did not go with them, and had nothing more to do with the matter. Within a very few minutes, three or four he says, he was ordered released by a deputy sheriff, and was released from jail and from this arrest. Appellant is shown then to have, in effect, stated he was going to arm himself and kill Spillers. He proceeded to hunt up a shotgun and shells with large shot, loaded his gun, and went to hunt Spillers to kill him, found him, shot him three times, the three loads taking effect in Spillers’ body, wounding him most dangerously, shot at him a fourth time, but missed him, and then fled.

Appellant contended, and so testified' and introduced other testimony somewhat tending to support him, to the effect that each of said arrests by Spillers of him, and especially on the night of July 28th, was because of Spillers’ malice towards him, and done to humiliate, embarrass, discredit, punish, and impose upon him, and that he was using, and had used, his official position as a policeman to accomplish these purposes and to run over and overawe him; that Spillers’ said actions and conduct were not actuated by any desire on his part to discharge his duties as a policeman, but were solely for the-purposes stated. With these issues thus made by appellant, we think all the testimony of Spillers himself, and of the various officers, of the city and county, to the effect that all arrests by the police officers of said city were made without warrants, and that the police officers were so instructed to make arrests without warrant by their superior officers, and that Spillers was instructed by the assistant county attorney and the other-officials to arrest appellant on this occasion— in other words, all such testimony as would show, or tend to show, the reverse of appellant’s contention as just stated, and that Spillers was acting in good faith in the discharge-of his duties as a policeman — was admissible. This disposes of a large number of appellant’s, bills of exceptions to the admission of testimony on these lines. The court properly admitted said testimony on the question of the motive of Spillers in making said arrest, and restricted the jury to the consideration thereof for that purpose alone.

If appellant had resisted said arrest at the time it was made, or had attempted to relieve-himself of arrest after being arrested, and at that time had shot Spillers, his rights would have been very different from what they were-under the unquestioned facts shown by this. record. He did not then shoot Spillers, nor attempt to shoot him, but shot him some 25 minutes to an hour thereafter, and after he had been entirely released and relieved from all arrest. It is unnecessary, therefore, to discuss what his rights would have been if the shooting had occurred when he was arrested, or during his confinement under that arrest by Spillers.

Our Constitution (section 9, art. 1) guarantees:

“The people shall be secure in their persons * * * from all unreasonable seizures.

Our law has all the time, and especially since our Codes were adopted in 1856 (articles 259-263) expressly authorized arrests by peace officers in a great many instances without warrant, and expressly authorized municipal corporations to establish rules authorizing arrests without warrant in a great many instances. These statutes have uniformly been sustained by all the courts as constitutional. 2 Branch’s Ann. P. C., pp. 1114, 1115.

No error is shown in the court’s action in admitting the testimony complained of by appellant in his bills from 2 to 11, inclusive, and 15, along the lines mentioned. As qualified by the court and as shown by the record, the court correctly admitted the testimony of a threat by appellant against Spillers, objected to in appellant’s twelfth bill.

The ordinance of said city giving the marshal thereof authority to arrest without warrant, complained of in appellant’s thirteenth bill, was admissible. We think it applied, not only to the marshal personally, but to all policemen under him in the city. Another ordinance of the city making it an offense for any person to appear in certain public places mentioned in company with a common prostitute was also admissible. This ordinance, while it may not have specifically covered the first offense for which Spillers arrested appellant, yet had a bearing upon the good faith of the officer in making the arrest, was admissible along the same line as covered by his bills above mentioned.

After giving the seventh paragraph of the charge on self-defense, the court in the eighth gave this:

“If you believe that the defendant committed the assault as a means of defense, believing at the time he did so (if he did do so) that he was in danger of losing his life or of serious bodily injury at the hands of said J. R. Spillers, then you will acquit the defendant, and say by your verdict, ‘Not guilty,’ or if you have a reasonable doubt thereof, you will acquit Mm.”

This did not shift the burden of proof to appellant, nor ignore the doctrine of reasonable doubt as applied to a defense, as complained of in one of appellant’s bills. This paragraph of the charge was a correct'enunciation of the law applicable in this case.

Nor did the court err in refusing to charge, as appellant complained he should, that the arrest of appellant on said night of July 28th was of itself adequate cause. If the shooting had occurred at the time of the arrest, or while appellant was under arrest, and in an attempt to secure his liberty therefrom, such charge might have been applicable, but the court gave the proper charge on the subject, submitting to the jury for them to determine from all the facts and circumstances whether or not adequate cause existed so as to reduce the offense from assault to murder to aggravated assamlt.

The court did not err in omitting to charge, in substance, that the appellant had the right to .arm himself and seek Spillers for any explanation, as complained of in appellant’s twenty-third bill. The court submitted self-defense, and did not limit in any way such issue with a charge on provoking the difficulty. The law is settled that if the court in his charge does not limit the accused’s right of self-defense by a charge on provoking the difficulty, or otherwise, but submits his right of self-defense on every defensive theory, it is not error to refuse to charge on his right to arm himself and seek an explanation. Williford v. State, 38 Tex. Cr. R. 396, 42 S. W. 972; Harrelson v. State, 60 Tex. Cr. R. 539, 132 S. W. 783; Holmes v. State, 69 Tex. Cr. R. 588, 155 S. W. 205; Fox v. State, 71 Tex. Cr. R. 322, 158 S. W. 1141; Strickland v. State, 71 Tex. Cr. R. 585, 161 S. W. 110; Carey v. State, 74 Tex. Cr. R. 117, 167 S. W. 366; Ford v. State, 177 S. W. 1176.

As the record presents this case, it was unnecessary, and it would have been improper, for the court to have told the jury that the said arrest on July 28th was illegal, unwarranted, and regarded by the law as a great provocation and a species of aggravated assault, as contended by appellant should have been given. As stated, if the shooting had occurred at the time of the arrest, or an attempted release therefrom, such charge might have been proper, but the shooting did not then occur, but occurred at such a time thereafter as to make such charge improper.

In a separate paragraph, the court charged the jury thus:

“Uncommunicated threats, if any, against the life of a person accused of assault with intent to murder, may be considered by the jury in ascertaining the condition of the mind of the party assaulted at the time of the shooting.”

Appellant at the proper time and in the proper way excepted to this charge, and in every way properly preserved and presented the question. His specific objection, among other things, was that it was more restrictive than is the law, and prevents the jury from considering said uncommunicated threats for other legitimate purposes, and especially for the purpose of corroborating the evidence of communicated threats and throwing light upon who probably began the difficulty. In our opinion, appellant’s complaint is correct, and requires a reversal of the judgment. Unquestionably, there was testimony of repeated threats which were uncom-mumcated as well as threats which were communicated. Both were denied by Mr. Spillers. The effect of ■ the charge was to restrict the jury to the consideration of un-communicated threats for the sole purpose of ascertaining the assaulted party’s condition of mind, and prevented its consideration for the purpose of corroborating other evidence of communicated threats which were denied by Spillers, and prevented the jury from considering it for the purpose of determining who probably began the difficulty at the time of the shooting. The appellant’s testimony, perhaps, alone raised the latter question, and it may be that the great preponderance of the testimony was against him on this issue, and the jury might not, and probably should not, have believed him on that issue; but this was a question which the court could not decide nor take away from the jury. They had the right to do this. The court should not have charged on the subject of uncommuni-cated threats at all. Howard v. State, 23 Tex. App. 278, 5 S. W. 231; King v. State, 9 Tex. App. 556; Reeves v. State, 34 Tex. Cr. R. 486, 31 S. W. 382; Wallace v. State, 44 Tex. Cr. R. 303, 70 S. W. 756, 100 Am. St. Rep. 855; Poole v. State, 45 Tex. Cr. R. 348, 76 S. W. 565; Adams v. State, 47 Tex. Cr. R. 355, 84 S. W. 231; Bethune v. State, 49 Tex. Cr. R. 166, 90 S. W. 1014; Underhill’s Crim. Ev. (2d Ed.) § 326, and authorities there cited.

For this error in the court’s charge, the judgment is reversed, and the cause remanded.
      <8=oFor other cases see samertopic and'KEY-NUMBÉR iú all Key-Numbered Digests ahd Indexes


text:
    MARSHALL v. STATE.
    (No. 4206.)
    (Court of Criminal Appeals of Texas.
    Nov. 1, 1916.
    On Motion for Rehearing, Nov. 29, 1916.)
    1. Criminal Law &wkey;>829(5) — Instructions— Self-Defense.
    Instructions in prosecution for murder, defining homicide, self-defense, and stating the terms and conditions under which one would be justified in killing in self-defense, held to properly present the issue of self-defense, and therefore warrant refusal of special charges requested by accused which it substantially covered.
    [Ed. Note. — For other cases, see Oriminal Law, Cent. Dig. § 2011; Dec. Dig. <©=829(5).]
    2. Criminal Law <©=829(5) — Instructions.
    If the court does not limit defendant’s right of self-defense by a charge on provoking the difficulty, or otherwise, but gives him the perfect right of self-defense on every defensive theory, it is not error to refuse to charge on his right to arm himself and seek an explanation.
    [Ed. Note. — For other cases, see Oriminal Law, Cent. Dig. § 2011; Dec. Dig. <&wkey;>329(5).]
    Appeal from District Court, Angelina County; L. D. Ouinn, Judge.
    Bluett Marshall was convicted of murder, and he appeals. Affirmed. On motion for rehearing.
    Motion overruled.
    W. J. Townsend, Jr., of Jacksonville, and I. D. Fairchild, of Lufkin, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

This is an appeal from a conviction for murder with eight years assessed as the penalty. It is the second appeal. The first is reported in 76 Tex. Cr. R. 386, 175 S. W. 154.

Appellant’s defense was claimed self-defense. The court in a correct and full charge submitted the issue of murder. No complaint is made of the court’s charge on that issue. He also submitted the issue of manslaughter in every phase that the evidence suggested. There was no complaint to the court’s charge on that issue. The testimony on behalf of the state showed a most horrible murder. It is unnecessary to detail the testimony. By his testimony, appellant raised the issue of self-defense. We think the court’s charge in submitting that issue did so in the most comprehensive and complete way in appellant’s behalf that could well have been done. The judge, in the main charge, instructed the jury:

“Homicide, which means the killing of one person by another, is justifiable when committed in self-defense. If you find from the evidence, beyond a reasonable doubt, in this case, that the defendant killed said Westmoreland about the time charged in the indictment, and by the means charged in the indictment, he would be justifiable if he did so to prevent Westmoreland from killing him, the defendant, or inflicting serious bodily injury on him, if it reasonably appeared by the acts of said Westmoreland or by the words of the said Westmoreland, coupled with his acts, at the time of such killing, if any, that it was the purpose and intention of the said Virgil Westmoreland to kill the defendant or to inflict on him some serious bodily injury, you will acquit the defendant. The defendant would be justifiable in killing the said Westmoreland, if he did so, if the said Westmoreland was attempting to cut the said defendant with a knife, and to prevent the said Westmoreland from cutting or inflicting on the defendant death or serious bodily injury, the defendant shot and killed the said Westmoreland, you will acquit the defendant. In passing on the question of self-defense, the jury can take into consideration all acts of the said Westmoreland, if any, done at the time of such killing, and any and all words spoken by him, if any, and, in fact, all of the facts and circumstances in evidence, transpiring at the time, or immediately before, and said acts and circumstances are to be viewed from the defendant’s standpoint; and if it reasonably appeared to the defendant’s mind, viewed from his standpoint, that it was the purpose and intent of the deceased to kill or inflict on him, the defendant, some serious bodily harm, the defendant had a right, in law, to act on such danger, or apparent danger, if any, the same as it reasonably appeared to the defendant, at the time, and the defendant would have the same right to act on the.appearance of danger as though the danger were real. The defendant was not bound to retreat to avoid the necessity of killing the deceased. If you should find' from the evidence, or believe from the evidence, that the defendant’s life was not in danger, or that he was not in danger of serious bodily injury from the deceased, West-moreland, you are instructed that the defendant had the same right to act on the appearance of danger, as if the danger had been, in fact,,real; if it reasonably appeared to the defendant, as Viewed from his standpoint, that the danger was real. When a homicide takes place to prevent death or the infliction of serious bodily injury, the weapon, if any, or means, if any, used by the deceased, on the occasion of the homicide was such as would have been calculated to have produced death or serious bodily injury, the law presumes that the person so using said weapon, if any, designed to inflict death or'serious bodily injury on the defendant. A deadly weapon is one that is calculated to produce death or serious bodily injury in the manner in which the same is used. If you have a reasonable doubt as to whether or not the defendant acted in self-defense, you will give the defendant the benefit of such doubt, and acquit him.”

In addition, the judge gave appellant’s special charge, as follows:

“You are further instructed that in determining the existence of actual or apparent danger, you are to view the facts of the case from the standpoint of the defendant, at the time of the killing, taking into consideration the threats made by deceased, against defendant, if any were made, the general reputation of the deceased for violence, if such has been proved, and the language of the deceased just before, and at the time of, the homicide, if such be in proof in determining the gúilt or innocence of the defendant.”

Appellant requested some special charges on this issue. We have carefully considered them. We think the court’s charge and that given at appellant’s instance sufficiently and fully cover a proper submission of the issue. It has always been held that, when an issue is properly covered and submitted by the court’s charge and substantially and fully embraces other special charges requested by the accused, the court should, as he did in this instance, refuse to give such other special charges.

The court refused to give some other special charges of appellant to the effect “that appellant had the right to carry his gun with him and to load it if he believed, or had reason to believe, that he might have trouble with deceased, or if he believed, or had reason to believe, that deceased would do him serious bodily harm or take his life; or if, in addition, they believed he secured the gun and loaded it to carry home with him, without any hostile intentions, hut for the purpose of defending himself, he would be justified in loading it.” In some cases this court has held that it would be proper to give some such charge. We have carefully considered the statement of facts, the court’s whole charge, and these specially requested charges on this subject which the court refused, and, in our opinion, the court correctly refused his charges. Briefly stated, the testimony up to the immediate act of killing shows this state of fact: Appellant and deceased were brothers-in-law; deceased having married appellant’s sister. They were on perfectly friendly terms. No disturbance between them theretofore was the occasion for the killing, or 'had any bearing upon it at the time of the killing! The killing occurred about, or .after, 12 o’clock at night All the evening before, appellant and deceased were together on the most friendly terms. Appellant had procured some' whisky, and they both drank freely of it all that evening and the night of the killing up to just a short time before the killing. Together they went from a gin, where they hád met, or some other place whence they went together that evening, to deceased’s home each carrying with him his gun, with the intention of together going hunting that night. Appellant also at the time had along with him a box of cartridges. They reached deceased’s home together somewhat early in the night. After together carousing, drinking, and eating, they called in a neighbor, Mr. Davis, to go hunting with them, and all three started to do so, hut deceased changed his mind qiter getting out a short distance from his home, and declared he would not go hunting, but would return home, and the other two also then so determined and returned to his home with him. Thereupon appellant procured his gun, which he had brought with him, and some cartridges, loaded it, and started home, following closely Mr. Davis and his wife and children, who were also returning to their home a short distance away. After he had gotten out about the yard gate, deceased hailed him, went to where he was, and in a drunken condition followed him along up some distance to where the killing occurred. There was no testimony or intimation that appellant, at any time after he procured and loaded his gun and started home with it, in any manner or for any purpose, sought the deceased at all, but the whole evidence is that he was attempting during all this time to get away from the deceased and return to his home. We think such charges as requested by appellant, under the circumstances of this case, were inapplicable. They could not and would not have been of any service to the jury to solve the questions submitted. And hence we conclude the court did not err in giving any of these specially requested charges on this subject.

No other question is presented.

The judgment is affirmed.

On Motion for Rehearing.

The sole question now raised is that this court erred in the original opinion in holding that the trial court did not err in refusing to charge as appellant requested, as tersely stated by appellant in his motion, on “the defendant’s right to arm himself.” As shown in the original opinion, the testimony in the case made such a charge wholly inapplicable. We did not then cite the authorities, but do so now.

As shown in the original opinion, the charge of the court submitted appellant’s claimed self-defense most fully and completely from all standpoints, and in no way limited his right of self-defense by a charge on provoking the difficulty, or. otherwise. Under -such circumstances, by many decisions of this court, uniform on the subject, the rule is, which we take from 2 Branch’s Ann. P. C. § 1950, p. 1091, as follows: If the court does not limit defendant’s right of self-defense by a charge on provoking the difficulty, or otherwise, but gives him the perfect right of self-defense on every defensive ■theory, it is not error to refuse to charge on his right to arm himself and seek an explanation. Williford v. State, 38 Tex. Cr. R. 396, 42 S. W. 972; Harrelson v. State, 60 Tex. Cr. R. 539, 132 S. W. 783; Holmes v. State, 69 Tex. Cr. R. 588, 155 S. W. 205; Fox v. State, 71 Tex. Cr. R. 322, 158 S. W. 1141; Strickland v. State, 71 Tex. Cr. R. 585, 161 S. W. 110; Carey v. State, 74 Tex. Cr. R. 117, 167 S. W. 366; Ford v. State, 177 S. W. 1176; Grippen v. State, 189 S. W. 496, recently decided, but not yet officially reported. We think these authorities are decisive against appellant’s contention herein.

The motion is overruled.

HARPER, J., absent.
      <S=Fbr other oases see same topic and KEY-NUMBER. in ail Key-Numbered Digests and Indexes