From appellant's own testimony we find that he was informed of insulting conduct of deceased toward appellant's wife on Saturday night before the killing on Wednesday, but that she did not then give him full details. He admits that after getting this information he and deceased were at a party together till a late hour Saturday night, and that he was armed but demanded no explanation of deceased and made no attack on him. From appellant we learn that on Sunday night following said Saturday, he obtained from his wife full details of the alleged insulting conduct, and that thereafter on the same night he saw deceased sitting in a car talking with one Fallis, and also that a little later on said night he saw deceased get out of his car and sit down to talk with some other persons. On neither occasion did appellant say or do anything to deceased. From appellant's testimony also we are informed that on the day of the killing he saw deceased on the street, and put his pistol inside his overalls, walked out and met deceased. He testified that just before meeting deceased he pulled his pistol far enough out to let deceased see he was prepared, and then had a conversation with deceased, which ended in his demanding that deceased go with him to the wife of appellant and apologize for the way he had treated her, to which he says deceased agreed, and appellant called his partner Combs who drove them to appellant's home. Appellant testified further that on the way to his home he told deceased he thought deceased was too good a friend of his to do that to him; that deceased replied, "Smitty, I haven't done anything, I haven't done what you think I have done, Smitty," to which appellant says he replied, "I know what you have done." Appellant also testified that when they walked into his wife's presence deceased said, "Mrs. Smith, I didn't do that, *Page 337 I didn't do that," and sat down, whereupon appellant said to his wife, "Norma, are the things you have told me about this matter true?" but that she began crying and made no reply. He says deceased kept begging her, saying he had not done that, and said again, "Mrs. Smith, I didn't do that, you know I didn't do that, tell him I didn't do that." He further stated that his wife then said, "I haven't lied" and that deceased started up from his chair and appellant fired rapidly, killing deceased almost instantly.
Our statute provides that when one seeks to reduce a homicide to manslaughter because of insulting words or conduct of the party slain, it must appear that the killing occurred immediately following the insulting words or conduct or at the first meeting of the parties after the slayer is informed of same. We have said in our decisions that the "first meeting" means the first time the parties are in proximity under such circumstances as would enable the slayer to act in the premises. Pitts v. State, 29 Tex.Crim. App. 377. This case has frequently been cited by us with approval. From the opinion in said case we quote:
"The law never intended to furnish a party with the opportunity and means of taking unlawfully the life of a human being. It is only in consideration of ungovernable passion that murder is reduced to manslaughter. Recognizing this infirmity in man, the law presumes such passion will assert itself on the first opportunity; and if the party happens to be or is intentionally armed after hearing of such insults, and he meets the wrongdoer, and being carried away by his passion slays him, the law mitigates the crime and punishment in consideration of the fact that his mind was incapable of cool reflection, and the offense becomes manslaughter instead of murder. It was never intended, and we trust never may be permitted, that an opportunity once being afforded for passion to assert itself, the injured party may afterward, coolly, calmly, and deliberately, select time, place, circumstances, weapons, and his own convenient opportunity, and then in revenge kill his victim without holding him guilty of murder." This applies with peculiar force in the case before us, and to appellant's insistence in his motion for rehearing that he should have been allowed to tell of particular instances of lewd conduct on the part of deceased of which he had heard prior to the homicide, said conduct being with other women. The testimony before us is plain and undisputed that appellant did not kill deceased on his first meeting after being told by his wife of the insulting conduct, and viewed in an effort to determine whether there be any fresh insult after such meeting and at the time of the killing, *Page 338 — we fail to find same. On the way to the house of appellant deceased had repeated the statement that he had not done the things. Appellant did not then manifest any uncontrollable passion. After reaching said home deceased again stated that he had not done said things and called on appellant's wife to support this by telling appellant that he had not so done. Her reply was to say to appellant, "I have not lied," whereupon appellant shot and killed deceased. We are at some loss to perceive how the conduct or statements of deceased immediately preceding the killing could be deemed fresh insulting words or conduct, and must look to the preceding facts to determine whether appellant was in fact caused to do this killing as a result of passion which he could not control. Under facts such as are before us we have no doubt of the propriety of the rejection of the testimony referred to and deem it not necessary to discuss the authorities cited, or the general proposition as to whether there might arise cases in which testimony of the previous lewdness of the deceased would be appropriate.
Complaint is made of our disposition of appellant's fourth bill of exceptions. The wife of appellant was a witness testifying to the fact of the insulting conduct by deceased and its detailed communication to appellant; also that deceased repeatedly hinted at and told her of acts and conduct of appellant, indicating that he was untrue to his marital vows; also that deceased was their family physician at the time of and after the alleged misconduct on his part, and that most, if not all, of such conduct occurred and was repeated when he was on professional calls at her home, that by reason of information received from deceased she suspected her husband and charged him with misconduct with other women on numerous occasions. Manifestly it was competent for the state to ask her on cross examination with reference to statements made by her to others which, if true, supported the proposition that deceased's conduct with her had always been that of a gentleman; and if she had not derived her information and belief as to the misconduct of appellant with other women, from other sources than deceased, and, upon her denial of such facts, to ask her if she had not so stated. So also she might be asked questions bearing on her continued use of deceased's professional services after his first misconduct with her. We are not attempting to set out in detail the matters in the wife's testimony to which much of the cross-examination was pertinent. It may be that the questions to said wife as to whether she had not stated prior to the homicide that appellant was going to kill deceased, were improper, but she denied such *Page 339 statements, and the objections of the appellant are all grouped in said bill and are made as much and for the same grounds to all of the matters therein complained of. A bill of exceptions is too general when it includes a number of matters, some of which are clearly admissible and no direct or special challenge appears to be made as to a particular matter which might be otherwise objectionable. Payton v. State, 35 Tex.Crim. App. 510; Gaines v. State, 37 S.W. 333; Tubb v. State, 55 Tex. Crim. 623; Cabral v. State, 57 Tex.Crim. Rep.; Solosky v. State, 90 Tex.Crim. Rep.. What we have just said also applies to appellant's bills of exception Nos. 8 and 9. In one of these he presents more than a page of the record setting out the testimony of Mrs. Fort, co-mingling that which was admissible with other parts that might be questionable, and if the bill speaks the facts, making the same objection to the whole of said testimony for the general reason stated, not one of which specifically refers to or points out the matter so strenuously here urged by appellant as erroneous. The precedents are too numerous and the rule is too sound and well settled in regard to the impropriety of such bills of exception. Appellant cites the Drake case, 29 Tex.Crim. App. 265; Skaggs v. State, 21 S.W. 257, and Hobbs v. State, 53 Tex. Crim. 71, but in neither of these is there a failure to call the attention of the court below to the error complained of, such as appears in the bill of exceptions before us, nor are any of the grounds of objection stated in bills of exception Nos. 8 and 9 based on what appears to be the only meritorious reason assigned for asserting that the objection is valid. We further observe that it is not the intent of our statute or decisions to hold that cross-examination of the wife of the accused must relate to words or expressions used by her while giving her testimony in chief, but on the contrary the state may apply the usual method of cross-examining her as to all matters germane and pertinent to her testimony as given on direct examination. This doctrine is not new. Mr. Branch in his valuable Annotated P. C., Sec. 152, cites Creamer v. State,34 Tex. 173; Hampton v. State, 45 Tex. 154 [45 Tex. 154], and many other authorities in support of same.
The state's theory apparently was that appellant was incensed at deceased because of statements made by the latter to appellant's wife indicating and disclosing appellant's conduct with other women. Appellant's wife testified that deceased had made many such statements to her and that because of them she became suspicious of appellant, tried to find out from him what *Page 340 his relations were with other women and charged him with same. She said that among other things deceased told her that he saw appellant and Spruce Schow with two girls and he supposed they were going to the park. It is a very significant fact that in her testimony as to what occurred at her house when appellant brought deceased there just before the shooting, Mrs. Smith testified that deceased said: "I didn't do that Mrs. Smith, you know I didn't do that," and that she replied, "You did tell me those things." Appellant also testified that his wife on various occasions prior to the homicide had accused him of being out with other women at lewd parties, and he said he was surprised because he did not know where she got the information. He also admitted that on several occasions shortly before the killing, he had asked her if deceased was not the one who had been telling her these things. Appellant made a confession shortly after the killing wherein appears the statement: "I told him that if he was man enough, to go before my wife and tell her the things he had said against me were false." Explaining what he meant by "tell her that the things he had said against me were false," appellant said he wanted him to tell her that the things he had said were false. These facts seem to us plainly to make material the proposition that the state might prove that appellant had in fact been out with other women at parties, and renders ineffective appellant's objection as set out in bill of exceptions No. 7, wherein he complains that the state made him admit that he and Spruce Schow went down to the park with two women, and that he took one of them home; the state also asked appellant, and he admitted it, that he had borrowed a car and driven alone with a married woman, whom he had never seen before, from a dance at Clifton down to McGregor, and that he afterwards met said woman at Waco. In our opinion facts showing appellant to have done the things, report of which to his wife the state claimed to be the basis for his enmity toward deceased, would be admissible as supporting the state's theory of the case.
We have given careful study to the various authorities and contentions of appellant, but believing them not well supported, the motion for rehearing will be overruled.
Overruled. *Page 341