text:
    DAVIS v. STATE.
    (No. 4648.)
    (Court of Criminal Appeals of Texas.
    Jan. 30, 1918.
    On Motion for Rehearing, June 12, 1918.)
    1. Indictment and Information <&wkey;9 — Special Term-Lack op Notice.
    An indictment for murder, found at a special term of the court called by the judge without giving- 30 days’ notice prior to the time the court was held, was valid.
    2. Criminal Law &wkey;829 (5) — Instructions —Repetition.
    In a prosecution for murder, whore the court’s charge on self-defense, together with defendant’s special charge, which the court gave, correctly presented and applied such question to the evidence, it was unnecessary to give any other of defendant’s special charges on the subject.
    3. Criminal Law &wkey;>366(4) — Evidence — Res Gestas.
    In a prosecution for murder, where immediately after the cutting, deceased went directly to his store and died there in a few minutes, and as soon as he reached it he told his wife, as she testified, “Oh, Mother, ho has got me this time; * * * he jumped on me,” such statements by deceased were res gestas and admissible as a shorthand rendering of the facts.
    4. Criminal Law <&wkey;G95(6) — Admissible and Inadmissible Evidence — Admísston Over- General Objection.
    Where deceased’s two statements, “Oh, Mother, he lias got me this time; lie jumped on me,” and the other, “He was to blame,” were all included in one statement made at the same time to his wife, and defendant did not object separately to tlio one, “He was to blame,” the bill predicating error on the admission of the wife’s testimony as to such statements to her presents no error, since, where evidence is introduced over objection, some of which is admissible, and some of which is not, but all is objected to together, no error is shown in the admission.
    5. Criminal Law ⅞⅜=>1169(2) — Harmless Error — Evidence.
    When substantially the same testimony is given by some other witness, to which there is no objection, the admission of other like evidence, objected to, presents no error.
    On Motion for Rehearing.
    6. Criminal Law ⅜=>366(4) — Evidence — Res Gestae.
    In a prosecution for murder, deceased’s statement to his wife after the affray, testified to by her, that he (defendant) was to blame, was inadmissible.
    7. Homicide <⅜^>295(1) — Instruction — Brovoking- Difficulty — Right to Arm.
    In a prosecution for murder, where the court gives no charge at all on provoking the difficulty, he should not give any charge on the subject of defendant’s right to arm himself in preparation for any attack, or contemplated attack, by deceased upon him.
    Prendergast, J., dissenting in'part.
    Appeal from District Court, Panola County; Daniel Walker, Judge.
    O. R. Davis was convicted of murder, and he appeals.
    Affirmed.
    J. G. Woolworth, H. N. Nelson, and J. R. Duran, all of Carthage, and Jas. M. Edwards, of Tyler, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

This is an appeal from a conviction of murder, with the lowest punishment assessed.

The indictment is attacked because it was found at a special term of the court called by the judge without giving 30 days notice prior to the time the court was held. The validity of such a term and all proceedings had thereat have been so many times, and so uniformly, sustained by this court that it is unnecessary to discus's the question again. Mayhew v. State, 69 Tex. Cr. R. 187, 155 S. W. 191; Vasquez v. State, 76 Tex. Cr. R. 39, 172 S. W. 225; Chant v. State, 73 Tex. Cr. R. 346, 166 S. W. 513, and cases cited; Gillespie v. State, 73 Tex. Cr. R. 587, 166 S. W. 135; Valdez v. State, 71 Tex. Cr. R. 488, 160 S. W. 341; Fisher v. State, 197 S. W. 189.

That appellant killed deceased by stabbing him with a knife is established by the un-contradicted testimony, and not contested by appellant. Iiis sole defense was self-defense.

There were several eye witnesses to the killing who testified. They varied as to some of the facts, as is nearly always the case.

Appellant and deceased were brothers-in-law, deceased having been married to appellant’s sister for some 17 years, they having five children, one a boy about 10 years old. Appellant and deceased were merchants in the town of Clayton. Their stores were some 75 or 80 feet apart on the same side of the street, with one other store and small vacant spaces between them.

Some 2 or 3 years before the killing some of the witnesses testified that appellant had accused deceased of misappropriating some of the school fund of the school of which they both and another were trustees. Deceased at the time resented this accusation to appellant himself. Thereafter they continued to pass and repass, and had more or less business between them, but it seems deceased never became cordial towards appellant. The testimony of several witnesses is clearly to the effect that appellant was quite hostile towards deceased, and was to the effect that appellant repeatedly made threats against deceased, even to the extent of what could he regarded as a threat to kill him. Bloomer Reeves testified that he was present -when de-ceas’od told appellant that he, appellant, had accused deceased of misappropriating said school money, and that at the time deceased said to appellant that he had misinterpreted the thing from start to finish, and that there was not anything to it; that he could take his books and show where every nickle had been spent' that had been turned over to him when he took charge; that appellant replied, “Don’t say 1 have lied; I will separate your head from your body;” and that at that time he was whittling on a stick with his knife.

Pete Giles testified that about a week or 10 days before appellant killed deceased he, with others and appellant, were about an automobile in the town of Longbranch near Clayton; that deceased passed near by and spoke to witness and perhaps others, not stopping, however. And that after deceased hád passed Something was said about him, and appellant said of deceased, “That damned son of a bitch had to leave Glayton, or him, one or the other.” Oscar Reed testified to substantially the same thing of what appellant said at the time, except that he did not hear him use an oath in connection with the remark. The testimony shows an entire absence of any threat by deceased towards appellant at any time.

Late in the evening, just before appellant killed deceased, the 10 year old son of deceased was out in the street in front of appellant’s store, playing in the sand and throwing up sand. Appellant himself swore that it was not specially hurting anything on the inside of the store, but that he did not want him throwing it up any more, and told him if he did not stop -throwing it up, he would whip him. He says the boy was like some little boys, a little sassy, and said he was not going to stop it, or as some of the other witnesses said, he replied he did not have to stop it. However, the boy did stop it, and went to his father’s store, where his mother was, and told, her of the occurrence. He did not tell his fattier, but told her. She said that his father, then hearing something of it, asked her, and she told him what the boy had said to her. She said deceased did not at once go to see appellant about it, but, after attending to some other matters for a short time, did go over to see appellant. All of the eyewitnesses, and so did appellant, in substance, testified that appellant was standing on the outer edge of his store gallery; that deceased walked up and stopped several feet from him, and asked him what the boy had done and what he had said to the boy.

Amos Holt, one of the eyewitnesses who was right at the parties at the time, testified: That deceased “asked Mr. Davis what his boy was doing (Carmichael’s boy), and Mr. Davis told Mr. Carmichael that the boy was throwing sand up in front of his (Davis’) store. Mr. Carmichael asked Mr. Davis what he had said to the boy, and Mr. Davis said that he had told the boy that if he didn’t quit he would whip him and he told Mr. Carmichael that he could whip him (Carmiehayel) too.”> That at the time Mr. Carmichael was some 4 or 5 feet from Mr. Davis. That Mr. Davis started off of his gallery onto Mr. Carmichael, putting his hand in his pocket as he went. That Mr. Carmichael caught Mr. Davis when they came together. They slung each other around about twice. Mr. Davis “stuck his knife in Mr. Carmichael, and they separated. They went to the ground after Mr. Davis was striking Mr. Carmichael. After they fell to the ground Mr. Carmichael straightened up from over Mr. Davis." In another place this witness swore as follows:

Mr. Carmichael “asked Mr. Davis what his boy was doing, and at that time Mr. Carmichael was standing right where he had stopped at first; and Mr. Davis told him that his boy was throwing up sand in front of the store. Mr. Carmichael did not move°then, but asked Mr. Davis what he had said to the boy, and Mr. Davis told Mr. Carmichael that he had told the boy that if he didn’t quit he would whip him, and also told Mr. Carmichael that he could whip him (Mr. Carmichael), too. To give Mr. Davis’ exact language, he said: T told him if he didn’t quit I would whip him, and, God darned you, I can whip you, too.’ At that time Mr. Carmichael was still in the same place. Mr. Davis then started toward Mr. Carmichael, who was something like 3 or 4 steps away, and as he started toward him he (Mr. Davis) put his hand in his pocket, and walked pretty pert; and at that time Mr. Carmichael was not doing anything, I saw him at the time. * ⅜ * jyir. Carmichael did not advance or move toward Mr. Davis from the point where he first stopped and asked the question. After they caught each other they slung each other around and around. I don’t know when Mr. Davis opened his knife, I didn’t see him open it. All I saw him do was to put his hand in his pocket and pull it out when he started on him. When Mr. Davis struck Mi’. Carmichael they were standing up together, and when he made this lick he hit Mr. Carmichael in the breast, just this way (indicating).”

He further swore:

“I saw Mr. Davis strike Mr. Carmichael in the front part of the body, and by the front part of the body I mean in here (indicating). I am not mistaken about it and have no doubt about it. I did not see any lick struck after they were on the ground, and while Mr. Carmichael was standing over Mr. Davis, there was no lick struck there.”

Mrs. Carmichael swore that when her husband left their store to go to see appellant, he was not mad, and did not look to be mad. Mr. Holt swore that he was not mad, and did not look angry when he had the conversation' with appellant detailed above. Others and appellant himself swore that deceased looked mad at that time, and, as they say, was mad.

The proof was that deceased had no arms whatever, and eyewitnesses, including appellant himself, swore' that deceased did not strike, nor strike at, nor attempt to strike, appellant at any time before or during the difficulty. The different witnesses’ detail of the difficulty was to the effect that when appellant ran his hand in his pocket and got out his knife that deceased caught his hands and his arms and only tried to prevent appellant from cutting him. The knife with which appellant killed deceased was shown to have a place at the end where it could be easily and' quickly opened. Appellant cut deceased twice with the knife. One cut was on the arm just below the shoulder, and severe, being four or five inches long. The other one was a deep stab in the left breast, making a ghastly wound, penetrating the heart.

Mr. Nelson, who was the merchant in the store between that of appellant! and deceased, swore that, as Mr. Carmichael walked off from appellant towards hisi store, he saw he was bleeding in the breast, and asked him what was the trouble, but Mr. Carmichael made no reply. He swore:

“I then turned to Mr. Davis, and asked what he meant by cutting a man up, and he said, ‘The damn son of a bitch came over there and insulted me,’ and he turned and went back towards his business;” that he had a knife in his hand at the time.

The testimony of appellant showed that he then told his son to get his gun out of his store and bring it to him, which he did, and he remained at the front of his store with his gun.

Willis Dawrence swore that not long after the killing appellant came by his house, called him out and asked him if he got to Mr. Carmichael’s before he died, and asked him if he saw a pistol. Witness told him he did not. He swore appellant then said that deceased came up and asked him what his boy had done, and that he told him that he was throwing up sand, and that he told him he would whip him — he was talking about the| boy — and that he told him (Carmichael) he could whip him. And he said he (Davis) tried to get out his knife, and did get it out, and that Mr. Carmichael caught his hands and held them, and was pushing him backwards, trying to trip him; that when he fell he fell across him, and that gave him a chance to open his knife, and he said that he cut himi across the arm, and that he put his hands on him and jumped up, and that when he jumped up he stabbed him.

Appellant himself swore that he cut deceased twice-with his knife; once when he was falling or just as he fell, and the other just after both he and deceased had gotten up.

The whole affair from start to finish embraced only a very short period of time and was all one transaction, and occurred at one time.

The court’s definition of malice aforethought was in accordance with the well-established definition thereof by the decisions of this court and as defined by Judge White in section 1225 of his An. P. C., which was quoted and approved in the late decision in the Flewellen Case, 204 S. W. 057, not yet officially reported.

The 'court’s charge on self-defense, together with appellant’s special charge, which the court gave, correctly presented and applied that question to the evidence. Hence it was unnecessary to give any other of appellant’s special charges on this subject.

Immediately after appellant had cut and stabbed deceased, deceased wenti directly to his store, and died there in a very few minutes and as soon as he reached, there his wife testified he told her “Oh, Mother, he has got me this time. He was to blame. He jumped on me.” Appellant objected, as his bill states, “to the witness (Mrs. Carmichael) being permitted to relate to the jury the said purported statéments of the deceased upon the ground that the same were merely his conclusions, and were irrelevant, immaterial, and prejudicial to the rights off defendant.” The court overruled his objection, permitting her to so testify. There can be no doubt but that these statements by the deceased were res gestae, and under the authorities were admissible as a shorthand rendering of the facts.

In Clark' v. State, 56 Tex. Cr. R. 296, 120 S. W. 179, appellant offered to prove his res gestse statement to the policeman when he surrendered the pistol with which he had killed deceased. He said to the policeman that he “had killed the deceased in self-defense.” On the state’s objection the court below excluded that statement on the ground that it was a conclusion and not a statement of fact. In an opinion of this court by Judge ■Ramsey it was held that this testimony was admissible, saying:

“That the declaration was somewhat in the form of a conclusion is undeniable. As to whether in any case one has acted in self-defense, or kills another in self-defense, may be a mixed question of law and fact, and yet it seems clear that, where one in agony or excitement makes a declaration that he had shot another in self-defense, it is, after all, something more than a conclusion, and is equivalent to the affirmation that he had shot his assailant in protection of his own person or his own life. It is a shorthand rendering of the facts, and is consistent alone, and embraces, the statement that the act was done, not in aggression, but for the purpose of warding off or preventing injury or death”^citing a large number of authorities.

In the Bateson, Case, 46 Tex. Cr. R. 34, 80 S. W. 88, this court had held that this testimony, to wit, “They murdered me without cause,” was inadmissible because a conclusion. In said Clark Case, the court through Judge Ramsey said that that decision was not correct, and overruled it and all that line of authorities.

In Lockhart v. State, 53 Tex. Cr. R. 593, 111 S. W. 1024, this court held that this testimony was admissible. Deceased’s wife asked him what was the cause of him (appellant) shooting him, and ha replied: “For nothing. He killed me for nothing.”

In Craft v. State, 57 Tex. Cr. R. 261, 122 S. W. 547, witnesses were permitted to testify to the dying declarations of the deceased as follows:

“Son killed me for nothing. I could not run out of it. I could not beg out of it.”

In the opinion, written by Judge Davidson, he says:

“The Clark Case reviews the authorities upon which appellant relies for a reversal on this question, and overrules them. For a discussion of the matter see Clark’s Case, supra.”

And he cites the Lockhart and Clark Cases, supra.

In Roberts v. State, 5 Tex. App. 150, this court held that this dying declaration of the deceased was admissible, to wit, “that Steve Roberts had killed him for nothing.” In Connell v. State, 46 Tex. Cr. R. 261, 81 S. W. 746, this court held that the dying declaration of- the deceased that his son “ought not have done it [killed him], and that he had no cause for doing it,” was held admissible.

In Sims v. State, 36 Tex. Cr. R. 165, 36 S. W. 258, this statement of deceased as his dying declaration, “Sims ought not to have shot me,” and, “I didn’t think that Sims was going to shoot,” was held admissible. See, also, Pierson v. State, 18 Tex. App. 562; Gaines v. State, 58 Tex. Cr. R. 638, 127 S. W. 181; Lane v. State, 59 Tex. Cr. R. 603, 129 S. W. 353 ; Meyer v. State, 37 Tex. Cr. R. 210, 36 S. W. 255; Lewis v. State, 33 Tex. Cr. R. 618, 28 S. W. 465; Allen v. State, 8 Tex. App. 67; Miller v. State, 18 Tex. App. 232; and see particularly section 1093½, subd. 2, of White’s An. C. C. P., wherein he cites and reviews many cases holding that such testimony was admissible as a shorthand rendering of the facts.

There can be no doubt but that the statement of deceased to his wife, “Oh, Mother, he has got me this time; he jumped on me,” was properly admissible. As shown by appellant’s bill, these two statements, and the other, “He was to blame,” were all included in one statement, made at the same time by deceased to his wife. As shown, the bill objected to the wholé statement. He did nor object separately to the one, “He was to blame.” Under such circumstances the bill would present no error, as has uniformly been held by this court. In. the recent case of Martin v. State, 189 S. W. 266, this court held:

“It is well settled that where evidence is introduced over objection, some of which is admissible and some of it is not, but all is together objected to, no error is shown; that, in order to point out any error, the objection must be specially to the particular portion which is inadmissible. Clearly, all of the testimony of this witness was admissible except what they asked Dock and his reply. He did not object to this specially, but included it, as stated, in his objections to the whole. This presents no error. Ortiz v. State, 68 Tex. Cr. R. 526, 151 S. W. 1056; Payton v. State, 35 Tex. Cr. R. 510, 34 S. W. 615; Gaines v. State, 37 S. W. 333; Tubb v. State, 55 Tex. Cr. R. 623, 117 S. W. 858; Cabral v. State, 57 Tex. Cr. R. 304, 122 S. W. 872; Hughes v. State, 68 Tex. Cr. R. 587, 152 S. W. 912; Pinkerton v. State, 71 Tex. Cr. R. 203, 160 S. W. 87; Boyd v. State, 72 Tex. Cr. R. 523, 163 S. W. 67; Lopez v. State, 73 Tex. Cr. R. 625, 166 S. W. 154; Francis v. State, 170 S. W. 782; Zweig v. State [74 Tex. Cr. R. 306] 171 S. W. 751; Ghent v. State [76 Tex. Cr. R. 523] 176 S. W. 568; Aven v. State [77 Tex. Cr. R. 37] 177 S. W. 82; 1 Thomp. on Tr. (2d Ed.) 696.”

There is also another well-established rule that when substantially the same testimony is given by some other witness to which there is no objection, .the admission of other evidence objected to presents no error.

Obie Davis, appellant’s witness and son, swore that on the way from where appellant stabbed deceased to his store, deceased said to his wife, “Oh, Ethel, I am murdered.” Ethel was the given name of Mrs. Carmichael. Mr. Belle, one of appellant’s witnesses, on his direct examination swore that when Mr. Carmichael was going to his store from where he was stabbed by appellant he said to his wife, “Mother, he has killed me.” Appellant made no objections to this testimony by either of these witnesses. While not literally the same as, “he got me this time,” it is substantially the same. In Wagner v. State, 53 Tex. Cr. R. 307, 109 S. W. 169, this court, through Judge Ramsey, held:

“It is well settled in this state that the erroneous admission of testimony is not cause for reversal if the same” evidence is presented “by other testimony not objected to.”

He cites many authorities. See, also, Tinker v. State, 77 Tex. Cr. R. 506, 179 S. W. 573; Bailey v. State, 69 Tex. Cr. R. 484, 155 S. W. 536; Christie v. State, 69 Tex. Cr. R. 602, 155 S. W. 541.

The judgment is affirmed.

On Motion for Rehearing.

Appellant’s able attorney at the time this motion was submitted made a vigorous, elaborate, and plausible argument. In addition, he has filed an able brief. He again presents some of the questions which were thoroughly considered and decided against him by the original opinion. His argument and brief have had full consideration. It is unnecessary to discuss again but two of his contentions.

The first is his claim that the testimony of Mrs. Carmichael, the wife of deceased, wherein she testified to the res gestas statement of her husband, as follows: “Oh, mother, he has got me this time; he was to blame; he jumped on me,” was inadmissible. This matter, as shown by his bill and the record, was fully stated in the original opinion, and was correctly disposed of therein. However, the other members of this court are of the opinion that if proper objection had been made to the one statement, “He was to blame,” it should have been excluded. This writer is of the decided opinion that this sentence was admissible under the authorities. Ail members of the court agree that the other two statements objected to were admissible. As stated and held in the original opinion, this one statement, “he was to blame,” not having been objected to separately, but with the other two, and as a whole, presents no reversible error, as more fully stated and held in the original opinion.

The other question is whether the refusal of the court to give his charge, as hereinafter stated, presents reversible error. Self-defense was the appellant’s defense. The court, in his main charge on that subject, gave this instruction:

“Every person is permitted by law to defend himself against an unlawful attack threatening injury to his person, and is justifiable in using all necessary or reasonable force to defend himself, but no more than the circumstances, viewed from the standpoint of the defendant, reasonably indicated to be necessary. Homicide is justified by law if committed in defense • of one’s person against any unlawful or violent attack made in such a manner as to produce a reasonable expectation or fear of death or some serious bodily injury. It is not necessary to the right of self-defense that the danger should in fact exist; it may be only apparent and not real. If it reasonably appears, from all the circumstances of the case, that danger exists, the person threatened with such apparent danger has the same right to defend himself against it, and to the same extent that he would if the danger were, real; and in determining the appearances it must be viewed from the standpoint of the defendant alone at the time, and from no other standpoint, but the defendant is not required to retreat in order to avoid the necessity of killing his assailant.”

And there stopped his charge on this subject. It will be seen from this that no charge applying the law to the facts was given by the court, but no objections were made by the appellant to the charge on that account at all'. Doubtless that is accounted for by the fact of the court giving the appellant’s charge on the subject applying the facts to his claimed self-defense. The specially requested charge by appellant, and given just as requested by him, is as follows:

“The defendant requests the court to charge the jury as follows: Gentlemen oí the jury, you are instructed that if, viewing all the circumstances in evidence from the standpoint of the defendant and from no other standpoint, you believe from tie evidence that at the time when the defendant inflicted the wound which caused the death of the deceased, it then reasonably appeared to the defendant, from the acts of the deceased and the situation of the parties, that he, the defendant, was then in danger of death or some serious bodily injury at the hands of the deceased, or if from the evidence you have a reasonable doubt of the foregoing, then in • either event it will be your duty to find the defendant not guilty of murder, and also to find him not guilty of manslaughter, even though you should believe from the evidence that the defendant was not laboring under or actuated by such reasonable fear of death or serious bodily injury at the time when he inflicted on the deceased some other wound which did not cause his death.
“But you are further instructed that in deciding from the evidence whether, in inflicting the wound which caused the death of the deceased, the defendant committed murder, or committed manslaughter or acted in his self-defense, and was justified, under the law as stated to you in the court’s main charge, you will consider all of the wounds inflicted upon the deceased by the defendant, together with all of the other facts and circumstances in evidence.”

It will be seen therefrom that the court in no way by his charge ‘or otherwise limited or restricted appellant in his claimed self-defense. He gave no charge at all on provoking the difficulty. When that is the case, the uniform holding of this court in a large number of cases is that the court should not give any charge on the subject of the appellant’s right to arm himself in preparation for any attack, or contemplated attack, by deceased upon him. Smith v. State, 195 S. W. 599; Williams v. State, 201 S. W. 189 ; Williford v. State, 38 Tex. Cr. R. 393, 42 S. W. 972; Ford v. State, 177 S. W. 1176; Carey v. State, 74 Tex. Cr. R. 112, 167 S. W. 366; Fox v. State, 71 Tex. Cr. R. 322, 158 S. W. 1141; Holmes v. State, 69 Tex. Cr. R. 588, 155 S. W. 205; Crippen v. State, 189 S. W. 498. Therefore the court did not err in refusing his special charge to the effect that if, from his standpoint and the conduct, words, and manner of the deceased, etc., it reasonably appeared to appellant that deceased was about to attack him, and he could not otherwise defend himself, “then the law did not require the defendant to stand and wait for such attack to actually begin before getting his knife, but the defendant had the right in such situation, if you find that it existed, to prepare to defend himself against such anticipated attack, if any, by getting his knife in his hand so as to be in position to use it if necessary in defending himself against such attack upon him by the deceased.” This requested charge was not the íaw applicable to this case as shown by the principles laid down in the decisions above noted. Nor did the court err in refusing his charge; No. 2, which presented substantially the same thing.

The motion is overruled.
      (¡S^jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      (g^Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

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

license: Public Domain

text:
    FLEWELLEN v. STATE.
    (No. 4455.)
    (Court of Criminal Appeals of Texas.
    Oct. 17, 1917.
    On Motion for Rehearing, Jan. 23, 1918.
    Dissenting Opinion, June 5, 1918.
    Concurring Opinion, June 19, 1918.)
    1. Criminal _ Law i&wkey;128 — Venue—Change.
    _ Where trial for murder resulted in a hung jury, the judge on his own motion for ample grounds stated in Kis order properly changed venue to district court of another county in view' of Code Cr. Proc. 1911, § 626, providing that district judge in case of felony may upon his own motion order a change of venue where a trial alike fair and impartial to accused and the state cannot be had.
    2. Criminal Law <&wkey;418 — Telephone Conversation — Admissibility.
    Where defendant and another agreed to phone for a certain purpose, and when the other, who put in the call, was unsuccessful in persuading the parties, defendant continued the conversation in substance the same what the other said in the conversation, it was admissible; the situation being in effect the same as if defendant had carried on the entire conversation.
    3. Criminal Law <&wkey;368(3) — Conversation-Res G-est®.
    Where immediately after defendant and W. pursued and shot one of the escorts of two women they pursued and caught the women, the woman caught by W. was properly permitted in relating what occurred immediately after the killing to relate her conversation with W.; it being part of res geste.
    4. Criminal Law <&wkey;>351(8) — Evidence — Tampering with Witness.
    Where after shooting deceased defendant forcibly took the woman accompanying deceased with him, testimony of the woman to the effect that defendant stated to her several times on such occasion that deceased shot first, and that she answered “Yes” because she was afraid to do otherwise, was admissible; such testimony tending to show that defendant was trying to “fix” the woman to testify in his behalf to what was not true.
    5. Criminal Law &wkey;>1169(l) — Appeai>-Imma-terial Testimony — Reversible Error.
    Where several witnesses without defendant’s objection spoke of deceased as a boy, and defendant proved by a witness that deceased was “a very heavy kind of a man,” there was no reversible error in admitting evidence that deceased was 19 or 21 years old.
    6. Criminal Law <©=»1170⅛(3) — Appeal — Preservation op Ground op Review — Misconduct op State’s Attorney.
    Defendant did not put his character in issue except for truth and veracity. The state's attorney on cross-examination asked the character witness, “What about his (defendant’s) reputation in B. county as to whether he is a law-abiding citizen?” An objection was sustained, and the question was not answered. Defendant then placed another character witness on the stand and questioned him with reference to defendant’s general reputation for truth and veracity. The state’s attorney asked such witness whether he was confining his testimony to question of reputation as it affects defendant’s reputation for truth and veracity. An objection was overruled, but the witness did not answer the question. The state’s attorney then asked, “Are you confining your answer to defendant’s general reputation for truth and veracity in the community in which he lives?” to which the witness answered “Yes.” No written charge was requested by counsel for defendant instructing the jury to disregard the questions or the effect of the same. Held, that what occurred was not reversible error.
    7. Criminal Law <&wkey;>364(5) — Res Gestze — Self-Serving Declarations.
    The killing having taken place at 10 o’clock at night, a statement by defendant to the officer to whom he surrendered at 5 o’clock the next morning that the man whom he had shot fired first was not part of res gestee and properly excluded as self-serving.
    8. Homicide <&wkey;169(2) — Evidence—Admissibility.
    Although defendant claimed to have been sexually intimate with the woman whom deceased was escorting when defendant shot him, testimony that four or five months before the killing defendant showed no concern when informed that such woman was intimate with another was immaterial and irrelevant.
    9. Witnesses <&wkey;340(3) — Impeachment — Want oe Chastity.
    It is not permissible to impeach any witness for truth and veracity by showing that his or her reputation for chastity is not good.
    10. Witnesses &wkey;340(3) — Impeachment — Want oe Chastity.
    Evidence that a witness kept company with married men and that they kept her was inadmissible for the purpose of impeachment; evidence that a witness has actually committed a given crime being inadmissible for such purpose.
    11. Homicide <&wkey;300(3) — Sele-Deeense—In-struction.
    In prosecution for murder, the charge on self-defense that a reasonable expectation of death or serious bodily harm will excuse a person in using all force as reasonably appears to him to be necessary to protect his life or person and it is not necessary that there should be actual danger, provided he acted upon the reasonable apparent apprehension of danger as it appears to him from his standpoint at the time, etc., amply submitted defendant’s claimed self-defense.
    12. Homicide <&wkey;300(7) — Sele-Deeense—In-struction.
    In prosecution for murder, evidence held not to entitle defendant to a charge that he had the right to advance on deceased if it reasonably appeared to him at the time judging from his standpoint that it was necessary for his self-protection.
    13. Criminal Law &wkey;770(2) — Instructions —Theory of State.
    Notwithstanding the evidence was conflicting, where it was sufficient to raise an issue in the state’s behalf, it had a right and it was the duty of the court to submit such issue on the theory of the state’s contention, though defendant’s evidence might have been sufficient to justify a jury finding in his favor.
    On Motion for Rehearing.
    14. Homicide <&wkey;286(2) — Instructions — “Malice.”
    An instruction that “malice in its legal sense denotes a wrongful act done intentionally without just cause or excuse” was correct, and criticism that word “legal” should have been used instead of “just” is hypercritical.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Malice.]
    15. Homicide <&wkey;300(7) — Provoking Difficulty — Evidence.
    In prosecution for murder, evidence held to authorize submission of question of defendant’s provoking the difficulty.
    Morrow, J., dissenting.
    Appeal from Criminal District Court, Williamson County; George Calhoun, Judge.
    Wilbur Flewellen was convicted of murder, and appeals.
    Affirmed.
    Wilcox, Graves & Metcalfe, of Georgetown, A. S. Fisher, Jr., of Houston, and N. P. Woodward and W. W. Hair, both of Temple, for appellant. Sam D. Snodgrass, of Temple, and E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

About 10 o’clock in the night of May 19, 1916, appellant ran down and shot and killed Roy BlcKinley on the streets of Temple. The state contended, and the proof was amply sufficient to show, that Leon Wilson was a principal with appellant in the killing. Appellant was convicted of murder, with his punishment assessed at life imprisonment.

One trial was had in Bell county, which resulted in a mistrial — a hung jury. Later the district judge on his own motion, for ample grounds stated in his order, properly changed the venue to the criminal district court of Williamson county, where the trial occurred. The change of venue was clearly authorized under the statute (O. C. P. art. 626) and decisions thereunder. The trial court committed no error on this ppint as contended by appellant.

Appellant claimed to have been sexually intimate with a married woman, Mrs. Ileen Fehrenkamp, from time to time, or most of the time, for three years prior to the time he killed deceased. The 'day before he killed him he went to Waco to see said Wilson. He tried to get said woman to go with him. She refused. At the time she, with her sister, then Susie Haney, later Murrell, together lived with their parents in Temple. While he and Wilson were together in Waco they wanted said two women to come to_ Waco and meet them. In effect they agreed to phone them for that purpose. Wilson put in the call, and Susie answered. Wilson told her he wanted to talk to Ileen. Ileen refused to talk. Thereupon he talked to Susie and told her that he and appellant wanted them to come to Waco for said purpose. They refused. Appellant was present with Wilson when he did this talking, and when he failed to induce the women to meet them he called appellant to the phone, who continued the conversation with Susie in substance, urging the two women to come to them at Waco, as Wilson had done. They refused his solicitation. Appellant objected to said witness Susie Murrell testifying to the phone conversation she had with Wilson on this occasion. Her testimony was admissible. Practically, and under the circumstances in this case, it was the same as if appellant had carried on all of the phone conversation with Susie himself.

On said night said two women, Ileen with deceased, and Susie with Roy Murrell, whom she married three days later, in one company, attended a skating rink in Temple. The two couples so returning had gotten within about a block of the home of the women. Appellant and Wilson, each armed with a pistol, that night went from Waco to Temple in a jitney and found these women, with their escorts, said distance from their home. The women, with their escorts, were walking on the sidewalk, going home. As soon as appellant saw them he hurriedly got out of the automobile. As soon as they recognized him the women and their escorts ran from him. Appellant and Wilson followed them with their pistols. Appellant, while chasing them said to deceased, “Run, you son of a bitch.” Another witness said he said, “Run, you sons of bitches.” Appellant and Wilson both shot at deceased, Wilson at least twice and appellant at least five times, killing deceased. Appellant continued after Ileen, and caught her; and Wilson continued after Susie, and caught her. Over appellant’s objection the court permit-, ted Susie, in_ telling what occurred immediately after the killing, to tell what was said by Wilson to her and she to him at the time. ■ All this testimony by her was clearly res gestee of the killing and admissible, as was held by the trial judge.

The court committed no error in permitting Mrs. Eehrenkamp to testify that while forcibly taking her to Belton with him that night that several times during the night appellant said to her that Roy McKinley, or that “he,” without calling deceased’s name, shot first; that because she was scared and afraid not to say so to him that she answered his statement “Yes,” but that, as a matter of fact, deceased did not shoot first; that appellant shot first. She swore deceased did not shoot at all. Any admission by appellant, as well as any testimony tending to show that he was trying to “fix” said witness to testify what was not true in his behalf, was admissible.

Some witness in describing deceased and telling who he was spoke of him as a boy, to which appellant made no objection. Appellant proved by Mr. Blum that deceased was “a very heavy kind of a man, about the same kind of man as Roy Murrell, probably heavier than Murrell, and maybe a little taller too.” (Murrell was a witness and testified before the jury.) There was no reversible error in the court’s permitting said Brum to testify, and later proving by Mrs. Hawks, that deceased was 19 to 21 years old. It was proved without objection that appellant was a man about 38 years old. Treadway v. State, 65 Tex. Cr. R. 222, 144 S. W. 655.

After the state closed- its evidence the defendant himself testified. He next introduced W. S. Hunter, of Belton, who testified that he was 60 years old; had lived in Bel-ton for 30 years; been a druggist there for 20 years, and was formerly editor of the Belton Journal; that he had known .appellant since he was á boy, and that appellant lived in Belton most of that time; that he knew his father for many years. He swore:

“I am well acquainted with the defendant’s reputation for truth and veracity in Belton, Tex., and it is good.”

On cross-examination the state asked this witness:

“What about his (defendant’s) reputation in Bell county as to whether he. is a law-abiding citizen?”

Appellant objected to this question, and the court promptly sustained the objection. The question was not answered. Appellant had not up to this time placed his character in issue except for truth and veracity. Appellant then placed W. B. Smith on the stand, who testified that he was raised in Belton; was bookkeeper for an oil mill there and had been for years; that he had known defendant since he was a small boy. Appellant asked him:

“Are you acquainted with defendant’s general reputation for truth and veracity in Bell county among those people who knew him?”
He answered:
“Yes. Q. Is it good or bad? A. It is good.”
The state’s attorney then asked him:
“Now, Mr. Smith, as I understand you, you are confining your testimony on the question of reputation as it affects his reputation for truth and veracity?”
Appellant objected to this question. The court overruled Ms objection. The witness did not answer that question, but the state then asked him this question:
“Are you confining your answer as to defendant’s general reputation for truth and veracity in the community in which he lives?”

The witness answered, “Yes, sir.” The appellant again objected to said question and answer, and the court overruled his objection. The court qualified the bill by stating that no written charge was presented by counsel for defendant instructing the jury to disregard the questions or the effect ‘of the same. The state did not offer any testimony or ask any other question seeking to show appellant’s reputation as to whether or not he was a law-abiding citizen. As contended by the state, the state did not then know, and could not have known, that appellant was not going to put his reputa, tion in this respect in evidence. Nor do the questions, or either of them, indicate that the defendant’s reputation in this respect was bad, nor that the witness would not have answered that his reputation in this respect was good. The bill in no way shows that what occurred was material or reversible error against appellant. Huggins v. State, 60 Tex. Cr. R. 214, 131 S. W. 596; Belcher v. State, 39 Tex. Cr. R. 123, 44 S. W. 1106; Phillips v. State, 59 Tex. Cr. R. 534, 128 S. W. 1100; Harding v. State, 49 Tex. Cr. R. 601, 95 S. W. 528; Hart v. State, 57 Tex. Cr. R. 24, 121 S. W. 508; Warthan v. State, 41 Tex. Cr. R. 387, 65 S. W. 55; Baker v. State, 45 Tex. Cr. R. 396, 77 S. W. 618; Renn v. State, 64 Tex. Cr. R. 639, 143 S. W. 167; Wyres v. State, 74 Tex. Cr. R. 32, 166 S. W. 1150; and otter eases.

As stated, appellant killed deceased in Temple about 10 o’clock at night. He then captured said woman, Ileen Fehrenkamp, whom deceased was escorting at the time he was killed, and she swore against her will took her away from the scene to Belton, 9 miles distant, walking a considerable part of the way, trying to get a conveyance for himself and her from various persons on his .route, and finally succeeding in getting a conveyance, and reached Belton with her about 5 o’clock the next morning. The court did not err in excluding the testimony by the officer, offered by him, to the effect that when he then surrendered to the officer he said to him, “I have shot a man in Temple; the man fired at me one time before I shot at him.” This statement by him could not have been anyp part of the res gestae, but was self-serving. ’ 1 Branch’s Ann. P. C. § 90, and authorities there cited.

The court did not err in excluding the proffered testimony of the witness Irvin to the effect that, while he and otters were with appellant in San Antonio some four or five months before appellant killed deceased, that he told of an occurrence between said woman Ileen Fehrenkamp and one Bob Mur-rell which indicated that said woman on that occasion had been intimate with said Murrell, and that appellant “said nothing and did not express himself as being displeased in any manner, but took toe news and information apparently in a good humor and apparently was undisturbed by it.” Such testimony was immaterial and irrelevant, too remote, and, in effect, a presumption upon a presumption. Maddox v. State, 76 Tex. Cr. R. 222, 173 S. W. 1026, and authorities there cited.

The rulei is uniform in this state that it is not permissible to impeach any witness for truth and veracity by showing that his or her reputation for chastity is not good. Stayton v. State, 32 Tex. Cr. R. 33, 22 S. W. 38; Woodward v. State, 42 Tex. Cr. R. 188, 58 S. W. 144; McCray v. State, 38 Tex. Cr. R. 613, 44 S. W. 170; McAfee v. State, 17 Tex. App. 139; Conway v. State, 33 Tex. Cr. R. 327, 26 S. W. 401; Hall v. State, 43 Tex. Cr. R. 489, 66 S. W. 783. The court therefore did not err in excluding the testimony of other witnesses offered by appellant to the effect that the state’s witness Susie Mur-rell’s general reputation for purity and chastity was bad.

Evidence that a witness has actually committed a given crime is not admissible for the purpose of impeaching the witness. The court did not err in excluding the testimony of said witness Susie Murrell offered ’by defendant to toe effect that some 18 months before the offense herein was committed she kept company with a married man by the name of Ducky Wilson, and that he kept her during that year, nor that Leon Wilson kept her during the time she went with him. 1 Branch’s Ann. P. O. § 168, and authorities there cited.

The court gave a charge correctly and sufficiently presenting the issues raised by toe evidence. Appellant made, several objections to it and requested several special charges, which were refused. The charge on self-defense was:

“(11) A reasonable expectation of death or serious bodily harm will excuse a person in using all force, as reasonably appears to him to be necessary, to protect his life or person, and it is not necessary that there should bo actual danger, provided he acted upon the reasonable apparent apprehension of danger-, as it appears to him from his standpoint at the time, and in such case, the party acting under such real or apparent danger is in no way bound to retreat in order to avoid the necessity of killing his assailant. If the jury believe from the evidence in this case that the defendant, Wilbur Flewel-len, on the night of the killing got out of the jitney in which he was riding and called the witness Mrs. Ileen Fehrenkamp for the purpose of talking with said witness and'for the purpose of effecting a reconciliation between them, and the jury further believe from the evidence in this case, viewing it from the standpoint of the defendant at the time, that immediately before the shooting of the said Roy McICinley by the said defendant that the said Roy McKinley made a demonstration as if to draw a weapon or did draw said weapon and fire at the said defendant, Wilbur Flewellen, and from the manner and character of said acts, if any, on the part of the said Roy McKinley the defendant was caused to have a reasonable expectation or fear of death or serious bodily injury, and that the defendant, acting under such reasonable expectation or fear, and while such reasonable expectation or fear continued, shot and killed the said Roy McKinley, deceased, or if you have a reasonable doubt as to such facts, then you will acquit the defendant and say by your verdict not guilty.”

This charge was a separate paragraph and complete- within itself. It amply submitted his claimed self-defense in accordance with his contention and as raised by him.

In another paragraph following this the court charged on provoking toe difficulty, and told the jury, in substance, that if they believed from the testimony beyond a reasonable doubt that appellant alone, or acting with Wilson, intentionally sought the meeting with deceased for the purpose of slaying him, and, having found him, did some act, or used some language, or did one or both, with the deliberate intention of producing an occasion and to bring on a killing of deceased, and that under all the circumstances what he did or said, or both, was under the circumstances reasonably calculated- to provoke a difficulty, and because thereof deceased attacked him, or them, and he or they killed deceased in pursuance of his or their original design, if any, then the appellant could not justify himself on the ground of self-defense, but such killing under such circumstances would be murder. He then submitted, the converse of this, and told the jury, in substance, that if they failed to find such state of fact beyond a reasonable doubt, then the jury are instructed that his right of self-defense would not be forfeited, and he could defend himself, or use such moans of defense as the facts and circumstances indicated to him, viewing it from his standpoint, to be necessary to protect himself from danger, or what reasonably appeared to him at the time to be danger, of his life or of serious bodily injury, and in passing upon that issue to give hirh the benefit of any reasonable doubt. This charge on provoking the difficulty and the converse thereof was a correct charge on the subject and strictly in accordance with the authorities. Giesecke v. State, 64 Tex. Cr. R. 531, 142 S. W. 1179; 2 Branch’s Ann. P. O. § 1953, where many cases are collated on the subject. But appellant contends the evidence did not raise an issue of provoking the difficulty.

Among other contentions, appellant specially contends the court should -have charged on his claimed self-defense that he “had the right to advance on deceased if it reasonably appeared to him at the time, judged from his own standpoint, that it was necessary for his self-protection to advance’’; this as applicable after he began shooting at deceased. He cites and relies upon Wilson v. State, 46 Tex. Cr. R. 527, 81 S. W. 34, and Stanley v. State, 44 S. W. 519. In this Wilson Case this court said:

“The court also charged with reference to abandonment of the difficulty by deceased. The facts did not call for this charg-e. The witnesses graphically describe this fight as being ‘fast and furious after it began’ until it was finished. It was a continuous fight from its inception to its close. Some of the witnesses testified that Harrell [deceased] was retreating part of the time, but he was fighting all the while; in fact, it seems that in moving around the parties finally returned to the point where the difficulty began, and at this point deceased fell.”

Under those circumstances it was held the court should have charged the jury that Wilson “had the right to pursue or follow up this difficulty until all danger to himself had passed.” But no such state of facts arose in this case. In said Stanley Case it appears deceased had' attacked Stanley and after ceasing his attack then “was seeking to get behind the wall, or get in the dark, and renew the attack.” Under those circumstances this court held it was proper for the court to charge, as it did, that Stanley had the right to pursue him if it appeared to him to he necessary for his self-protection. No such state of fact was suggested in this case. Hence no such charge was called for herein.

The evidence on some of the issues was conflicting and contradictory. Notwithstanding this, when the evidence was sufficient to raise an issue in the state’s behalf, it had a right and it was the duty of the court, to submit that issue on the theory of the state’s contention, and even though appellant’s evidence might have been sufficient to justify the jury to find in appellant’s favor on such issue. In stating and discussing the evidence on these issues it is not the purpose to give all the evidence in detail tending to prove or disprove such issue, but only to give, in substance, wtíat the jury, from all the evidence were authorized to find and believe, and base their verdict upon: Appellant was 38 years old, an unmarried man. From time to time, for a period extending over about 3 years before he killed deceased, he claimed he had been criminally intimate with Mrs. Fehrenkamp, a married woman, having her to meet him, with intervals intervening, more or-less frequently, for their sexual indulgence. During this period of the liaison he said they had a number of disagreements or estrangements, but that after a time they generally made up and renewed their illicit relations. Latterly, before he killed deceased, he evidently became more infatuated with her and jealous. He demanded she should indulge him alone and extend her sexual favors to no other man, and objected to her going with any other man. About 10 days before he killed deceased he had an engagement with her to meet him at Belton, at a certain hour. Instead of meeting him at the time agreed she went grape hunting in the country with deceased, riding on his motorcycle with him. When she did meet appellant an hour or two after the time agreed, he demanded to know why she had not met him at the time agreed. Along about this time, and shortly before, deceased had been going with, and going to see, Mrs. Fehrenkamp. They both lived in Temple, and appellant knew this. She did not want him to know she had boon grape hunting in the country with deceased on said occasion, and when he demanded to know why she had delayed her meeting with him she told him first one thing then another, stating them, had delayed her. Each time when she would tell him these causes of delay he would tell her' that that was a lie, and finally he told her she had to tell him the truth. Thereupon she told him she had been with deceased in the country on a grape hunt. He immediately, and because she had been with deceased, as she swore,’ struck her a violent blow in the face, bruising and blacking her face and eye, which showed for several days afterward and caused her considerable pain and injury. She then ar once ceased all relations with appellant and refused to see him, to talk with him, or otherwise communicate with him thereafter, except she, it seems, talked over the phone with him when he tried to get her to go to Waco with him, and also while in company with Mrs. Guinn one time. From that time on until he killed deceased he persistently tried to get her to make up with him. He wrote to ter, ptoned her, and tad Mrs. Guinn, tteir mutual friend, to see ter for tim offering to pay ter (Mrs. Guinn) $10 to even get Mrs. Eetrenkamp to see tim, and offering Mrs. Eetrenkamp to buy for ter and ter child all clothes they would need for months. As stated above, he tried to get ter to go with him to Waco the day before he killed deceased, and while in Waco he had Wilson and he himself tried to get ter to come to him in Waco. She positively and persistently refused all his overtures, and refused to even talk to tim over the phone while he was at Waco when he and Wilson both tried to get ter to do so, the same day, before he killed him that night. In this phone talk by appellant with Susie Murrell, when té was urging ter to bring Mrs. Fehrenkamp to him at Waco, Mrs. Murrell swore he said: “ ‘You had better come and bring her with you, because that other party might not be there to take ter any more.’ Pie said: ‘That otter party might not be there to take her any more.’ ” This reference by tim to “that other party” could have meant no otter than deceased, for the deceased was the only one who was then, and shortly before that had been, taking Mrs. Fehrenkamp anywhere, and was the only . other man who was shown to have been with her recently. So far as appellant was concerned, Mrs. Fehrenkamp had the right to see and to go with deceased at any time and place she desired, and deceased, also, so far as appellant was concerned, had the right to see her and go with her whenever and wherever he pleased. Appellant knew that deceased, and only he, was the direct cause of said woman breaking off her relations with him. Just a short time before he killed deceased appellant had beat her up because she had been with deceased, as shown. From the state’s standpoint and evidence the jury were authorized to find and believe that appellant was not hunting said woman the night he killed deceased for the purpose and with the hope of getting her to make up with him, but that at the time he sought deceased, “that other party,” doubtless expecting to find him, as he did, with that woman and to wreak his vengeance upon him because he had taken her away from him, or was the cause of her breaking with him and her refusal to make up with him, and kill Mm if he got the opportunity. |

The evidence further shows that when he ¡ and Wilson reached Temple from Waco on; their way to Belton, where they had hired j the jitney man to take them, he had the driv- j ' er to drive around in Temple on various , streets not on thoir route to Belton, and he! had him drive slow past the home of said! woman, and when they reached, that point! he ordered the driver to stop, and as he began to do so appellant said, “Well, we don’t want to stop here; we will alarm everybody i around here; drive up.” They then contin- ! ued to drive slowly up the street on which ; said woman’s home was until he met the wo- | men with their escorts about a block from their home. Appellant was on the watch while thus riding along, and must have expected to meet these persons, for immediately upon doing so he oi*dered the driver to stop, but before he could do so he hurriedly got out of the automobile — Wilson did, too — and took after them. They discovered him by the time he discovered them, and they immediately began to run from him to save their persons and their lives. They so continued their flight with appellant and Wilson in hot pursuit until they ran him some 200 yards and shot him down. Soon after this chase began, according to several eyewitnesses for the state, appellant and Wilson both began shooting at deceased, and continued shoot- ¡ ing until they shot him down like a dog and killed him, without deceased saying a word or doing anything whatever to either of them. Appellant swore, however, that he did not shoot at deceased until deceased pulled a pistol and shot at him. The state’s eyewitnesses swore that deceased did not shoot at him at any time, and that he did not draw any pistol at all. Whether he did or not, the court, in the charge quoted, submitted his claim of self-defense in accordance with his contention and as raised by him, even if his self-defense was raised at all.

It is hard to conceive of a more aggravated case of provoking a difficulty than the evi-' dence in this case shows occurred. Here deceased was quietly walking along on the sidewalk of a street of Temple, taking Mrs. Feh-renkamp to her home. Her sister, Mrs. Mur-rell and her husband were along in the same company. Deceased had the right to be where he was and do what he was doing. He said and did nothing whatever to appellant. Appellant had no right whatever to take after deceased and Mrs. Fehrenkamp and run them down, whether for the purpose of talking to her or not, or for the purpose of capturing said woman and forcibly taking her away from deceased, as she swore he did, just after he had — and it was a part of the same transaction — killed deceased. He chased deceased and said woman for about 200 yards before he killed him, but began shooting at him some considerable distance before he finally succeeded in killing Mm; his bullets striking deceased three times before he succeeded in shooting him down. There can be no particle of doubt that from the unquestioned facts of this case the deceased had the right to draw a pistol and shoot at ap-Xiellant and Wilson, or either, and if he had done so it would unquestionably have been in his self-defense. Deceased was the person on this occasion who had a right to defend himself by shooting at and killing appellant or Wilson, or both of them. So that, whether tlie issue of provoking the difficulty was in this case or not, surely a perfect right of self-defense did not arise in appellant’s favor.

The law is, as stated in Vernon’s Crim. Stats, p. 653:

“If a person by his own wrongful act brings about the necessity of taking the life of another to prevent being himself killed, he cannot say that such killing was in his necessary self-defense ; but the killing will be imputed to malice, express or implied, by reason of the wrongful act which brought it about, or malice from which it was done. A person cannot avail himself of a necessity which he has knowingly and willfully brought upon himself.”

A large number of decisions of this court directly in point so establishing the law are cited. See, also, 2 Branch’s Ann. P. C. § 1953, where he lays down the same doctrine and cites many cases. See, also, Thumm v. State, 24 Tex. Cr. App. 700, 7 S. W. 236; Davis v. State, 196 S. W. 522.

Under the law and the facts and the circumstances of this case the court did not commit reversible error in submitting the. question of provoking the difficulty and the converse thereof in the terms he did.

The judgment will be affirmed.

On Motion for Rehearing.

Appellant again presents some of the questions which were decided against him in the original opinion, and he complains that the court did not pass upon one question which j he presented, which was his complaint of the charge of the court in defining “malice” and “malice aforethought.” The court’s charge on this subject was this:

“Malice aforethought is the voluntary and intentional doing of an unlawful act, by one of sound memory and discretion with the purpose, means, and ability to accomplish the reasonable and probable consequences of the act.
“Malice aforethought includes all those states of mind under which the killing of a person takes place without any cause which will in law justify, excuse, or extenuate the homicide. It is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken.
“Malice in its legal sense denotes a wrongful act done intentionally without just cause or excuse.”

His complaint was directed to the last paragraph just quoted defining “malice” in that the word “just” was used instead of the word “legal” before the words “cause or excuse.” This criticism is hypercritical. But the holding of this court has been directly against his contention. The court’s definition of both “malice aforethought” and “malice” herein is a literal copy from the court’s charge in Witty v. State, 75 Tex. Cr. R. 444, 171 S. W. 229, which was expressly approved as correct by this court. Eor other cases see note 4, 1 Vernon’s Crim. Stats, p. 689, and cases there cited.

Judge White, in his Ann. P. O. art. 711, § 1225, says:

“Although, in its popular sense, ‘malice’ means hatred, ill will, or hostility to another, the legal significance of ‘malice aforethought’ is more extensive, and includes all those states of the mind under which the killing of a person takes place without any cause which will in law justify, excuse, or extenuate the homicide. It is ‘the doing of a wrongful act intentionally, without just cause or excuse.’ ‘It is a condition of the mind which shows a heart regardless of social duty and fatally bent on mischief; the existence of which is inferred from acts committed or words spoken.’ Lander v. State, 12 Tex. 462; McCoy v. State. 25 Tex. 33 [78 Am. Dec. 520]; Tooney v. State, 5 Tex. App. 163; Evans v. State, 6 Tex. App. 513; Harris v. State, 8 Tex. App. 90; McKinney v. State, 8 Tex. App. 626; Kemp v. State, 13 Tex. App. 561; Hayes v. State, 14 Tex. App. 330; Cahn v. State, 27 Tex. App. 709 [11 S. W. 723]; Gallaher v. State, 28 Tex. App. 247 [12 S. W. 1087]; Powell v. State, 28 Tex. App. 393, 13 S. W. 599; Vela v. State, 33 Tex. Cr. R. 322 [26 S. W. 396]. Either of the definitions of ‘malice’ above given will be sufficient in a charge, and so would any other definition of the term embracing substantially the same meaning. Martinez v. State, 30 Tex. App. 129 [10 S. W. 767, 28 Am. St. Rep. 895.]”

Appellant also again complains that this and the lower court were wrong in holding that the evidence raised the issue of provoking a difficulty with deceased by appellant. The testimony raising that issue was succinctly stated in the original opinion. There are two matters in connection therewith which will be here stated. He claims that the evidence shows his meeting with deceased the night he killed him was a mere casual and accidental meeting, that he did not know that it was deceased at the time he killed him, and that the court in the original opinion, wherein it was stated that deceased and Mrs. Fehrenkamp after they began to run from him continued their flight with him and Wilson in hot pursuit until they had run him “some 200 yards” and shot him down; the complaint being that the evidence showed the distance they chased him was not “some 200 yards,” but a very much shorter distance. All the testimony shows that appellant and Wilson followed and chased deceased from the point where they got out of the jitney to where the body' of deceased fell. Mr. Herndon, one of appellant’s witnesses, swore that this distance was “something like 150 or 200 yards.” Appellant himself swore that this distance was “about anywhere between 125 and 200 yards, maybe more, maybe not so much.” No other witness undertook to give this distance. However, it may be that the distance was not as much as 200 yards.

Appellant himself swore that he knew deceased “when I saw him”; that he knew Bob McKinley, a brother of Roy McKinley, and had known him a good while; that shortly before the killing he saw deceased at Belton and asked him, “Aren’t you Roy McKinley” ? He replied he was; and he said he thought so because he looked so much like his brother Bob. It was also shown that deceased had lived in Temple for a number of years; that appellant himself had lived there one year, and that latterly he lived at Bel-ton, only a few miles from Temple; the two places being easy and near of access connected by an interurban car line; that bis said woman, Mrs. Eehrenkamp, lived at Temple, with whom be frequently bad access there. It was shown also that appellant knew deceased was then calling on and going with Mrs. Eehrenkamp and that no other person was at that time. Just a few days before this he had beat her up because she did go with deceased. Appellant swore he was hunting for Mrs. Eehrenkamp that night, and, of course, must have suspected, if he did not know, that if he found her out from her home like he did find her, she would be with deceased, and not another. He had just driven around her home, and he, and the other witnesses who testified on the subject, said that he had the jitney man drive him down the street she lived on to almost the corner of the block beyond where she lived. He says he saw her and her sister, Susie, and their respective escorts, deceased and R,oy Murrell, as they turned the corner into Fourth street at the cold storage house. The testimony clearly shows that there was an electric light in the center of the street right at this corner, and in addition there was an electric light at the corner of said cold storage house itself, which must have made it very light. He immediately recognized them, and they immediately recognized him. They ran from him for their lives. He, with undue haste, got out of the jitney and took after them, and just after beginning the chase, Murrell swears, appellant or Wilson said to them, “Run, you sons of bitches.” Susie Murrell swore that while chasing them, just as he passed her, appellant said to deceased, “Run, you son of a bitch.”

From all this and other items of testimony the jury unquestionably were authorized to believe that appellant knew that it was deceased who was with Mrs. Eehren-kamp as soon as they turned the corner at the cold storage house, and took after him with his six-shooter and called to him and Mrs. Eehrenkamp both, “Run, you sons of bitches,” and later to deceased himself, “Run, you son of a bitch,” and still chased them with the intention of forcibly taking Mrs. Eehrenkamp away from him, all for the purpose and with the intent to goad him so as to provoke him and induce him to draw his pistol, and even shoot at him, as appellant says he did, so that he could have an excuse to kill him under the pretended claim of self-defense. Even if appellant’s meeting with deceased when he turned the corner at the cold storage house was casual or accidental, yet all that he did and said thereafter was willful and intentional, and not only reasonably calculated to provoke him to attack appellant to save himself and Mrs. Fehrenkamp, but actually did so provoke him to attack appellant, if he did as claimed by appellant. The evidence clearly justified the jury' to so find and believe, and the question was so raised as to authorize and require the court to submit the question of provoking the difficulty as he did.

We see no necessity of discussing again any of the questions decided in the original opinion. They were all correctly decided.

The motion is overruled.

MORROW, J. The evidence does not make a case involving the law of provoking the difficulty.

MORROW, J.

(dissenting).

I am unable to conclude that the facts of this case authorized a submission of the law of provoking the difficulty in connection with that of self-defense; nor am I satisfied that the issue of perfect self-defense was raised. The state’s evidence points to a homicide without justification or excuse. From, its viewpoint there was no difficulty between the deceased and the appellant, but the appellant pursued and shot deceased while the latter was engaged in no act except an effort to escape. From the appellant’s evidence the inference to be drawn is that his pursuit of the deceased was incidental to his efforts and desire to talk with the woman who was the companion of the deceased. Appellant’s conduct and manner in undertaking to obtain this interview was wrongful and doubtless reasonably calculated to cause the deceased to attack him, or at least to make a demonstration to resist appellant’s advances. In fact, of such a character was his conduct that I am of opinion that, if it be true, as he claims, that the deceased did attack him or make a demonstration to do so, appellant was not possessed of the right of self-defense, but that his right to defend was modified by his previous wrongful conduct to a degree that, viewed in its most favorable light, the homicide would be manslaughter. See Reed v. State, 11 Tex. App. 509, 40 Am. Rep. 795, and other cases cited in Branch’s Grim. Law, § 463. Though in the wrong, it does not follow that appellant would forfeit all right to defend Ms life should his conduct bring about an assault upon deceased, unless the appellant, having formed the intent to kill or seriously injure deceased, provoked the attack that he might have occasion to effect this purpose. See Jones v. State, 17 Tex. App. 611; Tliumm v. State, 24 Tex. App. 703, 7 S. W. 236; Branch’s Grim. Law, § 464, and cases cited. In other words, the intent to kill or seriously harm his adversary must be antecedent to the provocation in order to deprive one of all right to defend against an assault provoked by him, and then only is such right lost when the assault is provoked with intent to carry into effect the unlawful purpose. In this instance I am impressed with the view that appellant did not know the identity of Mrs. Eehren-kamp’s companion; that his conduct leading up to the homicide was not induced by a desire and intent to kill deceased, but by an intent, in all events, to obtain possession of tlie woman who was the companion of deceased at the time. I therefore think that the trial of the case upon the theory that appellant provoked the combat or produced the occasion in order to have a pretext for killing deceased or doing him great bodily harm was one not arising from the evidence, and thereiore erroneous. I recognize, however, that there is often great difficulty in determining just when a combination of -facts justifies a charge on the law of provoking a difficulty, and I know that my Associates have given to this record the most painstaking investigation and careful thought. They may be right. Unable to reach that conclusion, however, I take this occasion to briefly express my reasons.

DAVIDSON, P. J.

(concurring).

On motion for rehearing the case narrowed itself down to one proposition, that provoking a difficulty is not in the case, and therefore the trial court erred in putting such limitation upon his theory of self-defense. It is a very close question as to whether self-defense was an issue in the ease, but the court resolved this in favor of defendant and gave an instruction on that subject. Appellant contends that, provoking the difficulty not being in the case, the judgment should be reversed because of this unwarranted limitation on his right of self-defense. It may sometimes occur that there is rather a narrow margin between provoking a difficulty and imperfect self-defense. It is not my purpose to go into that question. There may be cases of- imperfect self-defense arising independent and apart from provoking the difficulty, but in the mind of the writer that question does not here arise. The question of provoking a difficulty, however, in the mind of the -writer is presented by this record.

Judge PRENDERGAST has pretty fully stated the facts, and it is deemed unnecessary to restate the evidence. That appellant had been having illicit relations with the woman with whom deceased was in company on the night of the tragedy seems to be conceded. That he knew the deceased had supplanted him, or was about to do so, or was enjoying her favors and friendship, is, I think, shown by this record by the statements of appellant and the testimony of the witnesses. He had had trouble with the woman shortly before this killing for being out with deceased. This is shown by the woman’s testimony, and during this trouble between them he struck her a blow in the face. This caused her to refuse to have further relations with him. He and his friend Wilson undertook to cause a meeting between themselves and this woman and her sister, which had been declined. They came from Waco through Temple to see these women, and were unable to find them. Finding them away from home, these parties went in a jitney about the town seeking them. Finally they discovered the two women and their companions walking along the street or sidewalk. Appellant immediately jumped out of the car with a pistol in his hand and pursued the women and deceased. They ran something like 200 yards, deceased and his friend pursuing them. Appellant, it seems, could not overtake or had not overtaken the deceased and the women, and holloed at deceased, “Run, you son of a bitch.” Thereupon, it is claimed, deceased turned and fired. There is testimony that he did' not fire.

Wherever an issue is presented in a case, whether for or against either party during the trial, it is the duty of the court to submit the law applicable to that issue. If there was evidence in the case raising the issue of provoking a difficulty, then it was the duty of the court to submit that issue to the jury. Of course, without the issue of self-defense in the case a charge on provoking a difficulty would not be justified. If appellant chased the deceased and killed him without holloing at him and applying the opprobrious epithet mentioned, or shot him while he was running, and deceased had done nothing, the issue of self-defense would not be in the case. If in chasing the women and deceased deceased was about to get away, and appellant holloed at him, as it was said he did, the applying of that opprobrious epithet is sufficient to raise the issue of provoking a difficulty under the authorities. After using that epithet and deceased fired, then, if appellant had a right of self-defense, this was a proper charge of limitation on his right of self-defense. In Mr. Branch’s Ann. P. C., on page 1094, § 1954, will be found a collation of the authorities on the question of provoking a difficulty. It is stated that, while the party must have said or done something at the time of the homicide to provoke deceased to attack him so as to have a pretext for killing the deceased, yet prior acts will be looked to to give character to what defendant said or did at the time of the homicide so as to determine his intent and to explain his words and acts. McGrew v. State, 49 S. W. 228; Mason v. State, 72 Tex. Cr. R. 501, 163 S. W. 66. Under this view of the law the acts and matters preceding, on the part of appellant, and his ill will and bad feeling towards deceased on account of the woman and their relations, would shed light upon the issue of appellant’s intent at the time and just preceding the killing and at' time of calling him a son of a bitch. It is also laid down by the authorities that, if the testimony for the state shows, that defendant sought deceased with intent to provoke a difficulty and offered him an insult before the shooting started, it is not error to charge on . provoking the difficulty. Barstado v. State, 48 Tex. Cr. R. 255, 87 S. W. 344; Gray v. State, 61 Tex. Cr. R. 454, 135 S. W. 1179; Sorrell v. State, 74 Tex. Cr. R. 505, 169 S. W. 299. It Is also held that it is not error to charge on provoking the difficulty if there is testimony to the effect that defendant first cursed deceased before either made an assault, and the state’s theory is that defendant made the first assault, and defendant’s theory is self-defense. Coleman v. State, 25 S. W. 772; Bateson v. State, 46 Tex. Cr. R. 46, 80 S. W. 88. And where there is testimony that defendant cursed deceased, and deceased then picked up a stick and started toward the defendant; this raises the issue of provoking the difficulty, and it was not error on the part of the court to so instruct the jury. Tardy v. State, 47 Tex. Cr. R. 444, 83 S. W. 1128; Best v. State, 61 Tex. Cr. R. 554, 135 S. W. 582. Again it was said in Sanders v. State, 83 S. W. 712, that the issue of provoking the difficulty is raised by testimony when defendant called prosecutrix a bitch, and that prosecutrix then hit defendant with her fist, and that defendant then struck her with a hatchet.

The writer is of opinion that under all the facts and circumstances detailed prior.to and up to the homicide, introduced to show the condition of appellant’s mind toward deceased with reference to the woman, and that when appellant found them he jumped out of the jitney and chased the deceased and the woman, and when they were about to escape his exclamation to deceased, “Run, you son of a bitch,” was intended to arrest the flight of deceased and cause him to fight, if deceased fired the first shot by reason of these acts and this conduct, it would raise the question of provoking the difficulty, and would be a limitation upon his right of self-defense. I therefore concur with Judge PRENDERGAST in holding that the question of provoking the difficulty was properly submitted under the facts.
      —.Pnr other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: HODGES, J.

text:
    MARTIN et ux. v. GRANGER.
    (No. 1992.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 11, 1918.
    On Motion for Rehearing, June 30, 1918.)
    1. Homestead <®=^>96 — Vendor’s Lien — Antecedent Debts.
    Where the owner of a lot not fully paid for contracted for the building of a house thereon, and subsequently,.being unable to meet his payments, rescinded the contract of purchase, destroyed his unrecorded deed, and had title taken in the name of the contractor, who in turn conveyed it back to the owner, retaining a vendor’s- lien, the homestead right of the owner attached before the transfer was made, the lot having been dedicated for that purpose, and the dedication having been completed when the improvements were begun, so that as to parties with notice no valid lien could be created to secure the antecedent debt.
    2. Homestead @=o129(2) — Risht to Enforce —Innocent Holder.
    While an attempt to unlawfully incumber the homestead may be invalid as between the parties to the original contract and those having notice, the homestead right will not be enforced against an innocent holder for value of the debt and lien thus created.
    3. Homestead <⅜=>129(2) — Bona Fide Lien-holders — Notice.
    Where the owner of a homestead not fully paid for contracted for the erection o'f a house, and, being unable to meet his payments, arranged with the contractor for the taking of title in his name, to be subsequently transferred to the owner incumbered with a vendor’s lien,.the fact that the deed from the original vendor to the contractor had not been recorded was not sufficient to put the bank, purchasing vendor’s lien note, upon notice of irregularity in the title.
    4. Trusts <⅜^357(1) — Transfer oe Property —Bona Fide Purchasers.
    That a wife has advanced funds from her separate estate to pay for land does not give her a right which may not be defeated by an unauthorized sale of the land to a bona fide purchaser for value, regardless of the fact that her equity was not susceptible of record.
    On Motion for Rehearing.
    5. Homestead <⅜=>129(2) — Vendor’s Lien — Constructive Notice.
    Where the holder of a homestead not fully paid for, rescinded his contract, destroyed his unrecorded deed, and had title taken in a person contracting to erect a house thereon, who subsequently conveyed to the owner subject to a vendor’s lien, the original owner’s possession of the premises was not sufficient to give a bank purchasing the vendor’s lien note constructive notice of his homestead rights; a homestead right not being inconsistent with an outstanding vendor’s lien.
    Appeal from District Court, Harrison County; P. O. Beard, Judge.
    Suit by L. Granger, trustee for the St. Joseph’s Catholic Church fund, against F. T. Martin and wife. From a judgment for plaintiff, defendants appeal.
    Affirmed.
    Y. D. Harrison, of Marshall, for appellants. Bibb & Bibb, of Marshall, for appellee.
   HODGES, J.

L. Granger, as trustee for the St. Joseph’s Catholic Church fund, instituted this suit in the court below against F. T. Martin and wife to recover the balance due upon a promissory note originally for $1,075 and to foreclose a vendor’s lien upon the homestead of defendants in the city of Marshall. The note was dated February 4, 1908, and was payable in monthly installments of $20 each. It purported to be for a part of the purchase price of two city lots upon which Martin’s homestead was situated, and stipulated for the retention of a vendor’s lien to secure its payment. Approximately $900 was due and unpaid when this suit was filed. There appears to be no controversy on this appeal concerning Martin’s personal liability for the amount sued for. The principal defense relied upon in the trial below, and urged in this court, is that of a homestead exemption. It is contended that the note was not in fact given as a -part of the purchase price of the lots, but as a device to secure the cost of building a house thereon after the homestead claim of Martin and wife had attached. The record warrants a finding of the following facts: Some time during the year 1907 Martin purchased the lots in controversy from J. H. Strength, agreeing to pay the purchase price of $800 in monthly installments of $15. Strength executed a deed to Martin, but this was never recorded. At the time of this purchase the lots were unimproved, but it was Martin’s intention to build a house on them to be used as a home for himself and family. In December of that year he made a contract with B. F. Findley for the erection of a residence, which was completed in January, 1908. Under their contract Martin was to make partial payments to Findley as the work progressed, and to pay the remainder when the building was completed. But for lack of funds Martin failed to meet his payments, and Findley refused to deliver possession of the house when finished. In order to secure Findley for the balance due, Martin and wife executed a mechanic’s lien contract; but, upon the advice of attorneys that this would be invalid under the circumstances, that was abandoned. Findley was pressing for his money, and Martin appears to have been willing to make any kind of a contract that would secure its payment. About that time Findley ascertained from Strength that all of the original purchase money for the lots had not been paid by Martin. After a conference it was finally agreed between the parties that Martin and Strength should rescind their contract, destroy the deed which had been made by Strength to Martin, and that Strength should sell and convey the two lots to Findley in consideration of his paying the balance of the purchase money due from Martin. This plan was accordingly adopted. Martin destroyed the unrecorded deed which 'Strength had made to him, and on the same day Strength executed a deed to Findley; and immediately thereafter Findley conveyed the property to Martin, the deed reciting a cash payment and the note for $1,075. This note provided for its payment in installments of $20 per month, and for the retention of a vendor’s lien on the lots in favor of Findley. Within a few days thereafter, and before the first installment became due, Bindley, for a valuable consideration, assigned the note to the State Bank of Marshall, and the latter afterwards transferred it to appellee. The bank had no actual notice of the nature of the transaction from which the note resulted, and no notice of any homestead claim on the part of Martin in the property. The evidence seems to be undisputed that it acted in good faith and paid full value for the note. Findley and Martin differed as to when Martin’s occupancy of the house began. Martin testified that he was occupying the building when he received the deed from Findley. The latter, however, testified that possession had not been delivered to Martin until after that transaction. Mrs. Martin filed a separate answer, in which she alleged that the payments made on the original purchase price of the lots prior to the rescission agreement by her husband and Strength were from her separate funds, and for that reason she claimed a separate interest in the property. 'She further alleges — and her pleadings are supported by the evidence— that she knew nothing of the transaction between Martin, Strength and Bindley in which the note sued upon originated. In a trial before the court a judgment was rendered against Martin for the full amount sued for, and an order entered foreclosing the lien.

The evidence justifies the conclusion that the homestead rights of Martin in the property attached before the note and lien here involved originated. The lots were purchased for that purpose; and when he began the erection of the improvements thereon the dedication was complete, and the evidence of it was sufficient to put others upon notice. It is immaterial that neither the house nor the lots had been fully paid for. As between Martin and those having notice of his homestead rights no valid lien could be created to secure an antecedent debt, even though it was incurred for improvements previously placed upon the lots. Rev. Civ. Stat. 5631; Lyon et al. v. Ozee, 66 Tex. 95, 17 S. W. 405; Lignoski v. Crooker, 86 Tex. 324, 24 S. W. 278, 788. But it is well settled that, while an attempt to unlawfully incumber the homestead may be invalid as between the parties to the original contract and those having notice of the facts, yet that constitutional immunity will not be enforced against an innocent holder for value of the debt and lien thus created. Chamberlain v. Trammell, 61 Tex. Civ. App. 650, 131 S. W. 227; Sanger v. Brooks, 101 Tex. 115, 105 S. W. 37, and eases there cited. It is not disputed that in this instance the bank paid full value for the note and had not actual notice of the circumstances under which the lien was given, or that Martin had ever held any previous claim to the lots under a purchase from Strength. This was sufficient to make the bank an innocent purchaser for value and entitle it to claim that defense. That being true, it is immaterial that conditions may have existed which charged the appellee with notice of the homestead character at the time of his purchase. Herman v. Gunter, 83 Tex. 66, 18 S. W. 428, 29 Am. St. Rep. 632; Andrews v. Robertson, 111 Wis. 334, 87 N. W. 190, 54 L. R. A. 673, 87 Am. St. Rep. 870.

The appellants contend that the fact that the deed from Strength to Findley had not been recorded when the bank purchased the note was a circumstance sufficient to put it upon notice that there might be some irregularity in the chain of title, and in the absence of any record the bank as a purchaser would be charged with notice of all the facts which it might have learned by inquiring of Martin, who was then in possession of the premises. In Sanger v. Brooks the rule is reiterated that the purchaser of real estate, or .an incumbrance thereon, is presumed to know the contents of the muni-ments in his chain of title, whether recorded or not. The fact that a deed is not recorded is not ordinarily a circumstance which requires a purchaser to push his inquiry concerning the title further than the deed itself. Had this been called for and examined at the time of the purchase by the bank, it would have disclosed nothing, tending to impeach the fairness of the transaction or validity of the lien. Assuming that the difference in the consideration expressed in the two deeds was sufficient to attract attention, it did not suggest any adverse claim on the part of Martin, or indicate that he had ever held any previous ownership or possessed any equitable rights in the property. In Sanger v. Brooks the suit was to cancel certain conveyances and promissory notes alleged to be incumbrances upon the homestead. The facts of that case show that Brooks was indebted to Odpm, and in order to secure that debt the parties resorted to the following scheme: Brooks and wife conveyed the property to Odom, and the latter on the same day reconveyed it to Brooks, the deed reciting the retention of a vendor’s lien to secure a balance due of the purchase price. The two conves'ances constituted a- simulated transaction for the purpose of fixing a lien upon the homestead. The note was afterwards transferred to Sanger. Chief Justice Gaines held that the character of the two conveyances, occurring on the same day and being of record, was sufficient to put Sanger Bros, upon notice that it was a device to evade the law. No such circumstances exist in this suit.

In a separate answer Mrs. Martin asserted rights by reason of the fact that her separate funds had been used by her husband in making the payments to Strength under the original purchase.' Those payments gave her at most only a separate equity in the land, with Martin holding the legal title in trust for her. .That claim, like any other estate held in trust, might be defeated through an unauthorized sale to a bona fide purchaser for value. The fact that her equity was not susceptible of record does not alter the situation. Patty v. Middleton, 82 Tex. 586, 17 S. W. 909); Sanborn v. Schuler, 82 Tex. 117, 23 S. W. 642; Daniel v. Mason, 90 Tex. 244, 38 S. W. 162, 59 Am. St. Rep. 815.

The judgment of the district court will be affirmed.

On Motion for Rehearing.

It is insisted in appellants’ motion for rehearing that their possession of the premises at the time the note was assigned by Eindley to the bank was sufficient to put the latter upon notice of their homestead, claim. That may be true; but the homestead claim was not inconsistent with an outstanding vendor’s lien for the purchase money which the deed from Findley to Martin disclosed. The rule applicable to such a situation is well stated in the following cases: New England Safe Deposit & Trust Co. v. Harrell et al., 39 S. W. 142; Sparks v. Loan Agency, 19 S. W. 258.

The motion is overruled.
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