Appellant was allotted ten years in the penitentiary for murder in the second degree. About half *Page 39 after one o'clock on the afternoon of October 17, 1908, in a little room attached to the barber shop and hiawatha joint of the deceased, Cecil M. Hall, there was a game of cards played in which the deceased and appellant participated; there were also others in the game. The deceased won the money of appellant on one of the hands played. Growing out of the loss of this money there grew an angry altercation. Appellant left the room and went across the street to his drug store and almost immediately returned. He, however, did not enter the place of business of the deceased but sat on the gallery, either of the deceased or adjoining gallery, the two business houses being joined by an unbroken gallery running in front of both. Appellant left his coat and pocketbook in the room where the card playing had occurred for which he sent a friend who secured and gave it to the appellant. Appellant afterwards returned to his drug store and remained there until about 4 o'clock. It is shown by some of the witnesses that the deceased threatened the life of appellant and armed himself for that purpose. These threats were communicated. These threats were to the effect that deceased intended to kill appellant before night. This is the concrete substance of the threats. It is in evidence that he, deceased, armed himself for this purpose. It is further shown in this connection that deceased had exchanged pistols with one of the officers some time prior to this trouble, the officer desiring the deceased's pistol because there was some defect in the pistol of the officer and it would not work satisfactorily. After the difficulty over the game of cards, the deceased got his pistol from the officer and made some remark to the effect that the officer's pistol wouldn't work well but his own pistol would and he was ready for the trouble with appellant. We are not undertaking to state the exact language but the concrete substance of the evidence in regard to this phase of the evidence. About 4 o'clock or a little after, the deceased entered the store of Lee Hall which was across the street from his place of business and immediately thereafter appellant and his brother entered the store behind the deceased. The deceased went to the back of the store and spoke to two of the witnesses who were sitting near the back door of the store. Afterward he went out of the back door to a little warehouse belonging to Lee Hall, which is estimated to be something like twenty feet from the main building and entered it. Lee Hall and Mooring were in there at the time and perhaps another party. Immediately after deceased went out the back door of the main building appellant went to this back door and leaned up against the side of it for two or three minutes looking in the direction of the door of the warehouse where the deceased entered. After remaining at this point two or three minutes, appellant hurriedly left it, going in the direction of where the deceased was, drawing his pistol and before reaching the warehouse fired as many as two shots, before getting on the little gallery of the warehouse. There is evidence indicating that the deceased fired one *Page 40 shot, at least there was one empty shell in his pistol showing evidence of having recently been discharged. The brother of appellant, who accompanied and went out of the back door behind him, says that he thought his brother was going home when he went out at the back door; that he was following along behind him and saw deceased standing in the door of the warehouse. He further states that he saw the hand of the deceased in his bosom, as he thought, to pull a pistol and called to his brother to look out. That his brother immediately fired two shots and he did not know who fired the third shot. Deceased's body was found some distance back from the door where he was seen standing, resting against a barrel on one side and some sacks of salt or flour, upon the other. He was shot in the back, left side and one ball entered through the fleshy part of the right arm and back of the bone. There was also one ball found imbedded in a barrel of syrup close to where the body of the deceased was found after the firing ceased. The testimony is very voluminous, a great deal of it of minor details, not necessary to be noticed and of no significance so far as this appeal is concerned. This is thought to be a sufficient statement to bring in review the questions suggested.
1. The first bill of exceptions recites that the State was permitted to prove by the witness McDonald, as follows: "I couldn't exactly understand the language the defendant used when he first shot at deceased, but I understood him to say something like, `I have got you.' I can't say the exact language, but I understood it that way." The bill then recites as follows: "It having been material for the defendant to have the language said to be that of the defendant, and not guess work, in order that said witness might be contradicted by another witness for the State, George Miles, who heard deceased and not defendant make use of language of similar import. The importance being also in showing that defendant did not make the first attack, and the testimony should therefore have been exact." The objections were by the court overruled. There was no error in this ruling of the court if it be conceded that the bill shows any grounds of objection. The testimony was clearly admissible. The witness was stating the language as best he understood it as used by the appellant as he approached the deceased and before he fired the first shot. The court did not err in admitting this testimony.
2. Another bill recites that the defendant asked Robert Hall the following question: "What position, according to your judgment do you think that the door was in at the time the ball struck the door?" To which question the witness answered: "I can't give a definite answer on that. I can only judge from the range of the ball, and from the way it hit the door." This was excluded on objection by the State. It is further stated that it was proposed by the defendant to show by the testimony of this witness and he would have shown by him, that from the range of the ball and the way it hit the door, no witness, save Luther Barnes a witness for the defendant, could *Page 41 have seen the deceased just before and at the time of the difficulty, or into the room where deceased then was. There was no error on the part of the court in this ruling. We are unable to ascertain the purpose for which this testimony was sought, unless it was for the purpose of showing the range of the ball by the way it hit the door. The bill is too meagre to ascertain what the purport of this testimony was or what would have been its bearing. The witness could have stated the physical facts as to where the ball struck the door and the direction it took and let the jury draw such conclusions as they deemed proper. It was not proper for the witness to state his opinion as to the position of the door from the bullet marks nor the position of appellant's brother at the time. By reference to the record the evidence in regard to the shot marks on the door was fully and elaborately brought out on the trial. In fact there was a great deal of testimony in regard to the marks on the door where one of the bullets is said to have taken effect. As this matter is presented, we could not intelligently review it without going over the whole record, which the court is not required to do and if we did, there was no error in the ruling of the court, for the matter was fully exemplified before the jury.
3. Appellant offered the witness Guerrant to show that he had given his son money with which to purchase a horse from Ross Stewart, a witness for the State. The State had shown by the witness Stewart that he had sold a horse to Joe Guerrant, the son of the witness, and had received the money therefore in the store of L.O. Barnes, the defendant, the defendant not being present, and the subsequent riding of said witness, Ross Stewart, to Mesa, with Luther Barnes, a brother of the defendant, and the said Joe Guerrant, and his departure from the State from that point. It is further recited as follows: "The State having attempted to show by the sale of said horse and the purchase thereof, that the brother of the defendant had attempted to have the witness Ross Stewart leave the State and not be at the trial of the defendant; and it being material for the defendant to show that neither he nor his brother had anything to do with the purchase of said horse." This bill is qualified as follows: "The testimony of the witness C.R. Guerrant was that he was not present when his son bought the horse, in question, and that he did not know of his own knowledge that his son purchased the horse with the money he had given him. That he only knew it from what his son had told him. The State objected to this testimony because it was hearsay, irrelevant and immaterial and on its face showed that there was better evidence. The witness Joe Guerrant was in attendance on the court and at the time had not been offered as a witness. All of which appears from the record." As qualified there was no error in rejecting this testimony. Ross Stewart was present and testified on the trial, and it was not questioned that the father gave the son money with which to buy the horse; that Ross Stewart *Page 42 sold the horse to young Guerrant and went to Mississippi but returned to Grimes County, attended the trial and testified as a witness.
4. Another bill of exceptions recites that the district attorney urged that the brother of defendant, Luther Barnes, had procured the absence of Ross Stewart from the State to prevent him from testifying in this case. Objection was interposed to this line of argument because there was no testimony going to show that he Luther Barnes had in fact procured the absence of said witness, it having been shown by the State that said witness Ross Stewart had voluntarily returned to the State to testify, and this without being under process. The court qualifies this bill by stating that the remarks of the district attorney complained of were deductions from the evidence as shown by the testimony of the witness Ross Stewart in the record. We are of opinion this argument is not subject to criticism. By referring to the record it will be seen that the testimony of Ross Stewart and one or two other witnesses, shows that Ross Stewart sold the horse to young Guerrant and Guerrant and one of appellant's brothers carried him to the depot where he took the train for Mississippi. They say they took him there as an accommodation to the witness; that they were going by the depot to a lake on a fishing excursion; that young Guerrant who accompanied Ross Stewart to the depot was the man who purchased the horse, paying him $42.50, $27.50 in money and assuming a debt and mortgage of $15 on the horse.
4. There are several criticisms of the court's charge in regard to manslaughter which we think hypercritical. The charge on manslaughter was very full and favorable to appellant. There are also several criticisms of the court's charge with reference to self-defense. In a general way we would say that it is more than seriously to be questioned whether manslaughter or self-defense was in the case from the defendant's testimony, and clearly it was not from the evidence introduced by the State. However, the court gave a favorable charge on manslaughter, if it be conceded that it is in the case.
5. It is contended that the 24th section of the charge was deficient in not instructing the jury that the danger must be viewed from the standpoint of the defendant and from his standpoint alone at the time. That particular clause in section 24 of the charge is as follows: "Provided, he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint alone at the time, and in such case the party acting under such apprehension of danger, real or apparent, is in no event bound to retreat in order to avoid the necessity of killing his assailant,, and has the right to act as long as such danger appears to exist." This quotation answers the criticism set out in bill No. 11.
5 1/2. Bill No. 12 criticises paragraph 25 of the charge wherein it uses the following expression in its charge on defendant's right of self-defense: "`Expectation of fear,' said expression having been *Page 43 originally written `expectation or fear,' but the `r' having been erased by the placing of an `f' over it in pencil, the original `or' having been written on a typewriter." The exception being that the expression "expectation of fear" is meaningless in law and the court having nowhere charged on the expectation or fear of death or serious bodily injury; and here now tenders this his bill of exceptions, etc. The court qualifies this bill in the following language: "Attention is directed to the charge of the court and preceding and succeeding paragraphs, where this error is fully covered, with a correct statement "expectation or fear." I will state in this connection that the charge was prepared by me "expectation or fear," and the change made by some one without my knowledge or consent. It was read by me to the jury as if written "expectation or fear." We think this objection is hypercritical but if there were any merit in it, it was eliminated by the statement of the trial court as above quoted.
6. Another bill recites that the court erred in paragraph 25 in instructing the jury as follows: "Now, if from the evidence you believe beyond a reasonable doubt, that the defendant killed the said Cecil M. Hall, but you further believe that at the time of so doing the deceased had made an attack on him," etc. The objection being that it placed the burden of proving beyond a reasonable doubt, the existence of the facts which would constitute self-defense; and limits the right of self-defense to an attack already made, and does not give the right as to an attack then being made, and in the act of being made, the evidence showing that such an attack was in the act of being made, not had been made. The court qualifies this bill by referring to the charge of the court in regard to this matter. A reference to this section of the charge in full, we think demonstrates there was no merit in it. In order that we make it plain we copy the whole section: "Now, if from the evidence you believe beyond a reasonable doubt, that the defendant killed the said Cecil M. Hall, but you further believe, that at the time of so doing the deceased had made an attack on him, which from the manner of it, and all the facts and circumstances surrounding the parties at the time, and the defendant's knowledge of the character and disposition of the deceased, caused him to have a reasonable expectation or fear of death or serious bodily injury, and, that acting under such expectation of fear, the defendant killed the deceased, then you should acquit him; and if the deceased was armed at the time he was killed and was making such attack on the defendant, and if the weapon used by him and the manner of its use was such as were reasonably calculated to produce death or serious bodily injury, then the law presumes that the deceased intended to murder or aimed to inflict serious bodily injury on the defendant. And if the deceased made demonstrations as if he were armed, and as if he were about to draw a weapon, the defendant had the same right to act as if the deceased had been armed." Taking this latter clause without reference to the prior clause of the quoted charge *Page 44 on self-defense, we are of opinion there could have been no possible injury done appellant. The court not only authorized the jury to acquit if the deceased had made an attack threatening life, or serious bodily injury, but in the latter part of the charge directly applied the charge to the very facts detailed by the brother of defendant, to wit: "If deceased made demonstrations as if he were armed, and as if he were about to draw a weapon, the defendant had the same right to act as if the deceased had been armed." We are of opinion that the charge as given sufficiently covers the facts of the case and pertinently directed the attention of the jury to the very facts of whatever danger could have presented itself to the mind of appellant as testified by his brother. As stated in the early part of the opinion, the brother of defendant said he noticed the deceased, as he stood in the door, had his hand in his bosom as if drawing or about to draw a weapon and called to his brother to look out, and that thereupon his brother fired twice. We think the charge, as before stated, was a direct application of the law to the facts.
7. Subdivision 28 of the charge is also criticised because it limits the law of threats to take the life of defendant by deceased. That charge in full is as follows: "You are further instructed in this connection that if you believe from the evidence that the deceased, Cecil M. Hall, had made threats to take the life of defendant or against his life, and at the time of the killing, if any, was doing or had done some act manifesting an intention to execute the threats so made, then you should acquit the defendant." Recurring to the testimony of the witness who testified in regard to threats, it will be noted that appellant emphasized, through the witnesses, that the deceased had threatened to shoot it out with defendant on the street and that he would do so before night. There was no other character of threats indicated except to take the life of appellant under this character of testimony. Usually the charge in regard to threats should include serious bodily injury as well as taking the life of the threatened party, but where the threats are directed exclusively to taking the life of the threatened party with a pistol or a gun, as in this case, we are of opinion that the omission in regard to serious bodily injury is not of such character as would require the court to reverse. The rule is that the charge must be directly applicable to the facts adduced before the jury and when the charge has pertinently applied the law to the given state of case, it is usually sufficient. If the deceased made the threats imputed to him, it was for the purpose of killing and therefore, under the circumstances, we are of opinion that this omission is not of sufficient importance in this case to require a reversal.
8. One of the grounds of the motion for new trial is that the jury separated after being empaneled. The facts show that the horse of one of the jurors had gotten out of the pasture, where he had placed it for safe keeping during the trial and was passing along the street *Page 45 dragging a rope, that the juror left the jury and caught the horse a distance of twenty-five or thirty steps away and that an attorney in the case walked up and took the horse to take care of, or at least to relieve the juror of the trouble of the matter. There was nothing said by the juror to the attorney or the attorney to the juror, or by anybody to the juror in regard to the case. The above is the substance of the matter in regard to the separation. We are of opinion that this is not of sufficient importance to require a reversal.
9. Another ground of the motion for new trial is that two of the witnesses testifying in the case were not sworn and that this fact was not discovered until after the trail. This comes too late. This direct question was adjudicated in the case of Goldsmith v. State, 32 Tex.Crim. Rep.. The language in the Goldsmith case is as follows: "It is made ground for a new trial, by amended motion, that the witness McConnell was not sworn before testifying. The agreed statement of the facts shows that he was introduced by, and testified for, the defendant. The amendment alleges that he `testified for the State.' No objection was reserved at the trial, and it is too late to raise this question on motion for new trial, even if he testified for the State."
Finding no reversible error in the record, the judgment is affirmed.
Affirmed.
McCord, Judge, disqualified.
ON MOTION FOR REHEARING. January 18, 1911.