Appellant was convicted in the Criminal District Court of Harris County of murder, and his punishment fixed at five years in the penitentiary.
We are informed by the facts that appellant was the owner of a certain lot in Houston upon which deceased had contracted to erect a house. It was agreed that at the end of fifteen days work by deceased in the erection of said house he should be paid by appellant the first thousand dollars due upon said contract. It was also in evidence that deceased agreed to employ appellant to work upon said building. After appellant had paid said thousand dollars it is undisputed that he was discharged by deceased. The facts tend to show that about the time the house was completed the two men met upon the third floor of an office building in Houston and that almost immediately upon their meeting the homicide occurred. The State's theory was that appellant waited in and around said building and went up in the elevator with deceased, and that deceased went out of the elevator first and that as soon as the two men were fairly outside of said elevator appellant drew his pistol and shot deceased. The State also contended that appellant had threatened on more than one occasion after his discharge that he would kill deceased or do him serious bodily injury. Appellant's theory was that deceased had discharged him without cause and was the aggressor in the fatal difficulty, and that as soon as the two men got out of the elevator deceased struck appellant with his fist and grappled with him and made a motion as though to draw a pistol and that appellant believing his life was in danger drew his own weapon and fired the fatal shot. The issues of law seem to have been so satisfactorily submitted by the trial court that no exception appears to the charge. *Page 48
There are four bills of exception in the record. By bill No. 1 complaint is made that the witness Black was not permitted to testify to a threat that one Rogers had told witness that he, Rogers, had heard deceased make against appellant and which threat Black offered to testify that he had repeated to appellant before the fatal difficulty. This testimony was hearsay pure and simple. There being a controversy as to who began the fatal difficulty, a threat made by deceased against appellant could have been given in evidence by any witness who had heard deceased make same, and this whether same was communicated or not. No authority known to us has gone to the extent of saying that in a case dependent upon the theory of self defense a witness may state that he heard another party state that he heard deceased make a threat against the accused. The rejection of said evidence presents no error.
Appellant's second bill of exceptions can not be considered because filed too late. The trial term of the court below ended on November 5, 1921. The statute allows thirty days from such adjournment in which to file bills of exception. On December 5, 1921, the last day of said statutory allowance of time, the trial court by order duly entered granted thirty days additional time from that date for the filing of bills of exception. This last extension of time expired January 4, 1922. The bill under consideration was filed January 9, 1922. It was filed too late.
Bill of exceptions No. 3 sets out the refusal to allow witness Harris to answer the following question: "During the time you were there did Mr. Holt (appellant) interfere with the work or with anyone?" It is stated that if the witness had been permitted to answer this question he would have said that he worked on the house and that at no time did appellant interfere with the work of any person laboring on the building. We have carefully examined the record and fail to find any testimony sustaining the proposition that the homicide was caused by or grew out of a charge that appellant interfered with the work or persons laboring on said building. There is testimony that deceased refused to allow appellant to work on said house after the first thousand dollars of the contract price was paid, but the State no where seems to assert that the discharge of appellant was for good cause, or to justify same upon the ground that appellant was interfering with the work or the laborers on the building. The State put witnesses on the stand who testified to threats made by appellant and that he complained of the quality of the lumber being used, but we see no reason for concluding that this would justify the introduction of evidence to rebut an issue not made by the State or raised by the evidence. A statement by deceased that appellant had been "bothering him" would not be met or overcome by proof that in the opinion of the witness appellant had not been bothering workmen on the building. *Page 49
We find bill of exceptions No. 4 difficult to understand. It concludes with a statement that the State objected to defendant giving testimony as to where his family had been, which he would have testified to if permitted, an objection to which was sustained and appellant excepted. The body of said bill of exceptions indicates that appellant wished to testify while a witness to what he told deceased at the time of a difficulty previous to that in which the killing occurred, as to where his family had been, and that he was not allowed so to state. We find both in the bill of exceptions and in the statement of facts that appellant testified that on the occasion in question he told deceased where his family had been. We do not quite appraise the materiality of the statement made at said prior difficulty, nor are we able to understand just what legitimate weight such a statement made at the time of said previous difficulty could have had in determining the guilt or innocence of appellant on this trial. If the court had in fact refused to permit appellant to testify that at the time of said previous difficulty he told the deceased that his family had been in the insane asylum, we are unable to understand how this could have been the exclusion of material testimony. However we are not led to believe that the court did exclude said testimony because of the statement in the bill of exceptions and in the statement of facts as above stated. We are not able to agree that the facts in evidence did not warrant the conclusion of guilt arrived at by the jury. However unjustifiable or wrong might have been the discharge of appellant by deceased, if the facts in testimony by the State witnesses are true appellant was at the building where the killing occurred a considerable time before deceased appeared, and rode up and down the elevator, apparently waiting or looking for some one, a number of times before deceased came. When the latter arrived the two men rode together to the third floor, and the elevator man testified that deceased went out of the elevator first and that immediately after appellant stepped out he drew a pistol and fired the shot which caused the death of deceased.
Finding no error in the record, the judgment of the trial court will be affirmed.
Affirmed.
ON REHEARING. March 14, 1923.