This is the second appeal. On the former appeal appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of fifty years, and the judgment was reversed by this court at the Dallas term, 1900. 41 Tex.Crim. Rep.. On the present trial appellant was convicted of murder in the second degree, his punishment being assessed at fifteen years' confinement in the penitentiary, and he prosecutes this appeal.
For a full statement of the facts of the case, see the former appeal. Briefly stated: Deceased, a woman, was a tenant of appellant, or, *Page 241 rather, employed by him to cook for the hands on his place. They had some disagreement, and several quarrels, during the two days preceding the homicide, but on the morning of the homicide the evidence tends to show they were reconciled. The killing occurred in the kitchen attached to the residence on the premises, while no one was present but deceased and appellant. Two short were fired, one entering in front, near the region of the heart, and the other from the rear. Deceased immediately ran out of the kitchen onto the gallery, and fell on the ground, where she expired. Appellant at once left the kitchen, proceeded to the lot, a short distance away, reported the killing, and then went to Henrietta, the county seat, and surrendered. He testified, and his evidence tends to show self-defense. There is also some testimony by defendant and other witnesses tending to show manslaughter. The State insisted that the offense was murder, and supported its theory by facts and circumstances tending to show that offense.
In discussing the assignments raised, the arrangement thereof as contained in appellant's brief will be substantially followed.
Appellant's bills of exception numbers 1 and 11 relate to the refusal of the court to permit defendant to prove by certain witnesses what had occurred at the former trial of the case with reference to proof offered by the State tending to show that appellant had killed deceased for the purpose of robbery. In substance, said evidence was to the effect that deceased was in the habit of carrying a large amount of money in her bosom, and that at the time of the homicide she had about $170 on her person; that after she was killed her body was examined, and the bills were gone. In this connection, it was shown that her two sons, Frank and Walter King (who were not witnesses on this trial), and L.R. Smith, were with the body immediately after the killing until it was examined and the money found missing. It was further offered to supplement this proof with evidence which transpired subsequent to the former trial, to the effect that the King boys had no money before the death of their mother, and that thereafter they passed to certain parties, to wit, Stephen Teal and W.B. Worsham, certain currency bills, which had blood stains, or the appearance of blood stains, on them. The bill also shows that the witnesses Frank and Walter King (sons of deceased) were present and under rule at this trial, but the State did not introduce them as witnesses, and the theory of robbery was not presented or relied on by the State. L.R. Smith, witness on the former trial, was introduced by the State as a witness at the present trial, and the bill shows that in the former trial he was used by the State, and testified, in effect, that immediately after the shooting he went to the body of deceased, and was with the body for a time with Frank King; that together they carried the body from the kitchen into the main house, and laid it on a cot; that, shortly after he and Frank King went to the body, Frank King went in through the kitchen *Page 242 to the main room, and fixed the cot; that directly he came out, and he and said witness carried the body into the house, and laid it on the cot; that said witness during the time he was in the kitchen, in passing to the room where the cot was situated, was under the observation of witness, and if he touched anything in the room witness did not observe it. This witness also testified that Frank left him with the body, and went for his brother Walter, and in a short while returned with Walter, when he (Smith) left the place to go for the officer, leaving Frank and Walter alone with the body. Appellant also, in this connection, offered to make profert of some of the bills passed to Worsham and Teal, said bills showing appearance of blood stains. All this testimony was, on objection, excluded by the court.
Appellant insists the court committed an error, because he says said testimony was admissible as tending to show a motive on the part of Smith, and thereby affecting his credibility, and it was further admissible as tending to show that the physical facts surrounding the homicide, and existing at the time of the homicide, were changed for the purpose of fabricating testimony, and that such evidence was admissible, no matter by whom the charge was made, whether by Smith or some one else. In arguing the first of these propositions, appellant says: The witness Smith was evidently engaged in the conspiracy with the King boys, and his relation to them was either prompted by motive of gain, or a motive to shield them, or to fabricate or suppress evidence which, in either event, would be prejudicial to appellant. Now, in reply to this, we have to say that we have examined the record carefully in order to ascertain if there was any testimony showing witness Smith was engaged with the King boys in the conspiracy either to rob the body of deceased and attribute it to appellant, or, if he was not engaged in such robbery with the King boys, if he afterwards engaged in the conspiracy to fabricate testimony for the purpose of shielding them, and laying the robbery on appellant. We must confess that we fail to find any such testimony. It would certainly be an effectual way of impeaching the credit of Smith, if it should be shown that he entered into a scheme of the character charged against him in appellant's brief; but, in our opinion, the circumstances do not tend remotely to show such conspiracy. It is true he was introduced as a witness on the former trial, and on this trial by the State, but he seems to have testified fairly then and now, and because he was a State's witness affords no reasonable ground that he had entered into a conspiracy to commit a robbery or to fabricate testimony. He happened to be on the place at the time, went immediately to the body, and his acts and conduct there do not suggest that he had any improper motive in being there; and instead of excluding the idea that the King boys did not commit the robbery themselves, his testimony afforded them the opportunity to have done so. While he says the body was not disturbed, and no search made *Page 243 during his presence, yet he left these parties with the deceased, which gave ample opportunity to take the money and appropriate it to their use and afterwards conceal the fact, and by their evidence attempt to lay it on defendant. So there is a failure to show any scheme on his part to exonerate the King boys in this regard, and after this there is no testimony showing that he had anything to do with said money, or that he had any knowledge the King boys had abstracted it from the body. We do not think we are authorized, in the absence of evidence, effecting a witness only by mere surmises, to introduce against him, for the purpose of impeachment, testimony concerning matters with which he had nothing to do. If the King boys had been introduced as witnesses, then this character of evidence would have been admissible for the purpose of impeaching them, but, in the absence of any testimony implicating Smith, it would not render the testimony admissible for the purpose of impeaching him. Furthermore, if the State had relied on the theory of robbery in the perpetration of the homicide on the present trial, and had introduced evidence remotely tending to show that the homicide was committed for the purpose of robbery, then all the evidence concerning said robbery would have been admissible in defense as original evidence. But, as stated before, this theory was not relied on, and it was entirely competent for the State to abandon it, if it desired to do so. Nor does the record in this case disclose any physical circumstances, in connection with the abstraction of the money from the bosom of deceased, that would tend to throw any light on the commission of the homicide or the manner in which it was done. There is no pretense that anyone else, save appellant, did the killing; in fact, he admits he did. The location of the wounds is not controverted, and the fact that deceased's dress in front of her bosom was loosened or disarranged when the body was examined by the officers comports with appellant's own testimony that she drew a pistol from her bosom. Moreover, testimony concerning this matter would have nothing to do with the physical objects in the kitchen where the homicide occurred, such as the arrangement of the chairs, their presence or absence from the kitchen, or the finding of the pistol in the kitchen. So from any point of view it occurs to us that the court did not err in excluding the testimony as presented in these two bills of exception.
Appellant complains, in his second assignment of errors, that the charge of the court on manslaughter was too restrictive, in that it confined the jury to the provocation at the time of the homicide. Appellant concedes that the jury was instructed in the eleventh paragraph of the charge to the effect that if there were several causes to arouse passion, whether arising at the time of the killing or not, and although none of them alone would constitute adequate cause, the jury might take into consideration all the facts, etc., to determine the issue of manslaughter. But he insists that, notwithstanding this, the charge was not adequate on account of the peculiar circumstances of this case; that *Page 244 in this case insulting language to a female relative was relied on. But it will be seen, from an inspection of the charge, that this phase of the case was presented to the jury, and there is no controversy but that this insult was used by deceased at the time of the homicide, if defendant's testimony is to be believed, and they were fully authorized to look back to previous provocations of a similar character as intensifying this accusation made at the time. Nor, in our opinion, was appellant, if we review the entire charge, cut off as to this matter, of manslaughter from the assault testified to by appellant as then being made on him by deceased. They could look to this and all other matters, and the fact that the court instructed them, in connection with the charge of insulting words, "that, unless the insulting words were the real cause of the killing, it would not reduce the offense." This is the language of the statute on this subject, and, if appellant relied exclusively on insulting words, these must be the real cause of the killing. But, if there were other circumstances in connection with this, in our opinion the charge was sufficiently comprehensive to embrace these other circumstances. We think the charge of the court is in accord with the authorities on this question cited by appellant. See Bracken v. State, 29 Texas Crim. App., 367; Johnson v. State, 22 Texas Crim. App., 206. It is certainly in consonance with the principles of law on this subject. Miles v. State, 18 Texas Crim. App., 170. We quote from that case as follows: "Now, while it is true that the provocation must arise at the time of the commission of the offense, and the passion must not be the result of a former provocation, yet in passing upon the sufficiency of the provocation, and on the effects of the passion upon the mind of the defendant, the past conduct of the deceased towards defendant, his threats and bearing, in fact all the facts and circumstances in the case, should be considered by the jury, and acts standing alone may not be a sufficient provocation, but may be ample when it is one of a series of similar acts, or when it has been preceded by an insolent and aggravating course of conduct, whether similar or not to the act committed at the time of the homicide." The court seems to have followed this enunciation of the law; that is, there must be a provocation arising at the time of the homicide, but the jury were expressly told they could look to all the facts and circumstances of the case as shedding light upon that provocation.
Again, appellant complains of the court's charge on manslaughter, and claims that the charge puts the burden of proof upon appellant to establish his defense of manslaughter beyond a reasonable doubt before the jury will be authorized to acquit him of murder. The argument of appellant, it occurs to us, is more ingenious than sound. He says that manslaughter is a defense to murder, and that consequently the charge of the court applying the law to the facts, which instructed them, in effect, if they believed beyond a reasonable doubt the killing occurred under certain circumstances (agreeing with the definition of *Page 245 manslaughter), to find him guilty of that offense, is shifting the reasonable doubt on the defendant. By analogy, we take it, he would claim that murder in the second degree is a defensive matter to murder in the first degree, and that a charge of the court which instructed the jury they must find the elements which constitute murder in the second degree beyond a reasonable doubt, before they would be authorized to find defendant guilty, would be shifting the rule as to reasonable doubt, because murder in the second degree is a defense against murder in the first degree. The charge complained of was a charge on manslaughter, and it was simply an instruction to the jury that they must believe beyond a reasonable doubt that the evidence showed the elements of manslaughter as defined, before they could convict appellant. Of course, we do not think the jury could have misapprehended this charge, and there is no complaint but that the jury were distinctly told, if they had a reasonable doubt of the guilt of appellant of any grade of felonious homicide, to acquit him. In this connection, we would say we find no fault with reference to the authorities cited by appellant in his able brief, but we can not agree to their application to the charge in question. While it is true that passion engendered by adequate cause in one sense is defensive matter, yet they are affirmative facts to be proven in order to obtain a conviction for manslaughter; and where self-defense is relied on, as in this case, these facts constituting manslaughter must be proven beyond a reasonable doubt before the jury would be authorized to disregard the plea of self-defense and to convict of manslaughter. They are affirmative facts entering into the definition of manslaughter, and should be proven in order to convict of that offense, and in this connection it does not matter whether the proof comes from the State or appellant.
Appellant complains of the court's definition of "malice." The court gave the stereotyped definition on this subject, to wit, "that `malice,' in its legal sense, denotes a wrongful act done intentionally, without just cause or excuse." The court also gave a full charge on express and implied malice and malice aforethought, and it does not occur to us that because of this general definition of malice, as above quoted, the jury were liable to find appellant guilty of murder in the second degree instead of manslaughter. It would appear that, if they misapprehended the charge in this particular, they would be more likely to find appellant guilty of manslaughter.
Nor do we think the charge of the court is subject to appellant's criticism in the fifth paragraph, where "implied malice" is defined. This definition, when taken together, is in accordance with the authorities, and could not have been misunderstood.
Nor does it lie with appellant to complain of the court's sixth paragraph in this charge, wherein the court applied the law of implied malice to the facts of the case, and therein instructed the jury: "If appellant killed deceased in a sudden transport of passion, aroused without *Page 246 `adequate cause,' as that term is explained, and not in defense of himself, as will be hereafter explained, they will find defendant guilty of murder in the second degree." If appellant killed deceased, which is conceded, if it was culpable homicide, it was done in a sudden transport of passion; and the real issue was, was there adequate cause or not? He, of course, claimed it was done in self-defense. The jury found there was no adequate cause, and it does not occur to us appellant could complain that the jury were restricted in the charge on murder in the second degree to a killing in a sudden transport of passion. Certainly not, when this was in accord with the proof offered. Nor does it matter that in this charge the term "malice" is omitted. Murder in the second degree had already been defined, and malice aforethought stated as an essential ingredient thereof. Implied malice had been defined, and then this charge in paragraph 6 told the jury if the killing was unlawful, and under circumstances to constitute it a killing on implied malice, appellant would be guilty of that offense; that is, they were told that they could infer the malice, which is in accordance with the rule of law on the subject. This was not like the charge in Shriver's case, 7 Texas Criminal Appeals, 454; and the charge in Kemp's case, 13 Texas Criminal Appeals, 561, which is not as clear as that given in this case, was approved by the court.
There is nothing in appellant's eighth assignment of error, as the charge of the court in paragraph 14a did not unduly limit the character of the attack of deceased against which defendant was authorized to defend himself. The jury were distinctly authorized to judge of the character of the attack, and the manner and character of the defendant's knowledge, and the character and disposition of the deceased. This authorizes the jury to review all testimony bearing on the issue of disposition and character of deceased. This includes her habit of going armed with a pistol, and her disposition to use the same, as also the language used by deceased at the time of the homicide.
It is insisted that the failure of the court, in connection with the charge of self-defense, to predicate a charge on threats, was such error as should cause a reversal of this case. It is true the court failed to instruct the jury on the doctrine of threats in connection with the law given them on self-defense. However, the threat here proven by appellant was conditional in character; that is, deceased had told defendant on the day previous that she would kill him if he had her boys indicted. This was also alluded to in their conversation at the time of the homicide, according to the testimony of defendant. Appellant, however, told her that he had not had her boys indicted. But suppose deceased did not believe him, and concede that the threat was not conditional, — that is, if it was conditional that it was a condition which she had no right to make; in the view we take, the threat would not serve to intensify her conduct and acts at the time of the homicide. If appellant is to be believed, — and there was no testimony outside of his as to her *Page 247 acts immediately connected with the homicide, — she not only drew the pistol on him, but advanced towards him, and attempted to shoot him. In such a contingency, threats would not intensify her conduct, but his right of self-defense was perfect on what she did at the time. The Barnes case, 39 Texas Criminal Reports, 189, referred to by appellant, does not support appellant. That was a case involving much the same question here presented. Previous threats had been introduced as evidence in the case. When the parties met, a quarrel ensued, and, according to the defendant's theory, the prosecutor shot at appellant. On this issue the court uses this language: "Now, there is no act of the prosecutor, under the appellant's theory, which can be viewed in the light of threats so as to give significance thereto. If appellant's theory be true, he did not need the threats to acquit him. The act of the prosecutor was such as to require no explanation. The prosecutor shot at him without any provocation whatever, and, if the jury did not believe this, there was no theory of the case presented by the evidence in which threats could have figured at all."
It is contended that the court should have given the special requested instruction predicated on the theory that, if appellant was justifiable in firing the first shot, and that same was fatal, but that the second shot was not a fatal shot, that in such case the firing of the second shot was immaterial in determining whether or not the defendant was guilty of murder, that, at most, appellant could only be convicted on the second shot of manslaughter. According to the view we take if this question, there was no issue predicated on this point. The evidence of appellant places these shots so close together as that if the one was justifiable the other must have been inevitably so, or if the first was not authorized the other was equally so. The witness Folsetter, so far as we have been able to discover, was the only witness, besides appellant, who heard the shots, and he states they were fired in rapid succession. Appellant testified on this point: "That immediately after denouncing him as a black son of a bitch, and that he was raising a lot of bitches, she raised up from her sitting posture, and jerked out a pistol, and threw it down on him, and just as she was in the act of doing that he jerked his pistol out of his pocket and shot her; and she then ran right up to him, and he caught her with his left hand, and wheeled her around, and shot her again as she went. That he did not know where any of the shots struck her. She threw her hands on the table, and then went to the door, and passed out of the house." He further testified: "That after the first shot was fired there was considerable excitement, and she came right at him with the pistol in her hand, and he could see her bulk there, and the second shot filled the room with smoke. As near as he could tell, she threw her hands out at the table, which was the customary place for the red-handled butcher knife, and he thought that she was grabbing at a knife. That he shot Mrs. Whitesides [deceased] because he was afraid she would kill him. That he *Page 248 did not shoot her for what she had said about his family. That he did not shoot her any more, as quick as he saw the danger was over." Now, from this evidence, it seems to us, appellant was as fully authorized to fire the second shot as he was the first shot. That is the reasonable interpretation we place upon his testimony, and we do not think the jury could have done otherwise. It does not matter in this respect which of the shots was fatal. It may be that the first was the fatal shot, and the second shot was, according to the testimony of one of the physicians, not inevitably fatal. The cases cited by counsel on this proposition announce a correct rule of law, but we do not believe they apply to this case.
What we have said above disposes of appellant's special requested charge number 1, with reference to the right of a defendant to pursue his adversary until all reasonable appearances of danger have ceased. We do not believe the court was required to charge on an unlawful and violent attack upon appellant. If any attack was made on him by deceased, it was a deadly attack, or one which, at least, would cause him to apprehend serious bodily injury, and nothing else.
During the argument of the district attorney, he stated to the jury that he believed defendant was guilty of murder. It does not appear any exception was taken to this remark at the time, but subsequently counsel for appellant requested the court to instruct the jury not to consider said remark, which instruction the court refused to give, and this is assigned as error. In explaining the bill, the court says "that his attention was not called to any such statements at the time they were made, but was first called to his attention by counsel asking the foregoing charge." In Cooksie's case, 26 Texas Criminal Appeals, 72, referred to by counsel, the court held that certain remarks of counsel were evidently injurious to appellant, and were reversible error. The charge, excluding said remarks from the consideration of the jury, was asked and refused. It is not stated in the case whether any exception was taken at the time to the remarks. Young's case, 19 Texas Criminal Appeals, 536, and Kennedy's case, Id., 618, are also referred to by counsel. In the first named case, the learned judge who wrote the opinion in Cooksie's case uses this language in regard to the remarks of counsel: "Now, in relation to this matter, we would be inclined to reverse the judgment if counsel for appellant had called upon the court to repress counsel for the State, and this had been refused, and such conduct had been persisted in without reproof. It seems that, when the attention of the court was called to these remarks, Mr. Maxwell had closed his argument." In Kennedy's case, supra, counsel for State was invoking public opinion to come to his aid in the prosecution. The learned judge who tried the case, without suggestion from defendant's counsel, on his own motion, promptly stopped the attorney as soon as he attempted to invoke public opinion. The court uses this language, citing the Young case: "While it is true that authors treating upon *Page 249 this subject say that counsel either for or against the prisoner should never express their opinion as to the guilt or innocence of the accused, yet we would hesitate at this day to reverse a judgment because of a violation of this rule." Now, it occurs to us that in fairness, while the objectionable remarks were being made, the attention of the court should have been called to the same, and an opportunity afforded to stop counsel, or, if necessary, reprimand him on account of such remarks, and, in addition to this, a charge should have been asked. As it was, it seems counsel was permitted to go on and announce his belief in defendant's guilt to the jury without objection. If the court's attention had been called to the matter at the time, no doubt the expression would have been withdrawn. However that may be, we are advised of no case where merely such expression of counsel's belief in appellant's guilt has been cause for reversing a case. (Of course, this is objectionable, and should not be permitted.) But the cases which have been reversed on account of remarks of counsel have been of a different character, and we do not feel authorized to hold in this case that the expression of the district attorney to the effect that he believed defendant guilty is reversible error.
We see no error in the fourteenth paragraph of the court's charge on self-defense. Taken as a whole, it expressed a proper rule of law. It is true, in the first part of the charge, the court told the jury that "the party would be justified in using all necessary force to protect himself," etc. The court should have instructed the jury that he is authorized to use such force as may reasonably appear to him necessary. The charge, however, complained of, further told the jury that appellant was authorized to act upon the reasonable appearance of danger as it appeared to him at the time, and that in no event was he bound to retreat or resort to any other means in order to avoid the necessity of killing his assailant. Moreover, in the succeeding paragraph, the jury was instructed: "If the attack on him by deceased was of such a character as to cause him to have a reasonable anticipation of danger or serious bodily injury, viewed from his standpoint, and he shot and killed deceased, then to acquit him; and that if deceased was armed at the time she was killed, and was making such attack on defendant, and if the weapon used by her, and the manner of its use, was such as likely to produce death or serious bodily injury, then the law presumed deceased intended to murder or inflict serious bodily injury upon defendant, and that it was immaterial whether the pistol was loaded or not loaded, or would shoot or not shoot, provided defendant did not know it was unloaded or would not shoot, which latter fact the State must show."
We do not think there was any error in permitting the witness Weldon to state the angle the ball took which made the hole found in the floor. This, it seems to us, was not a question for an expert, but merely a matter of observation. In addition to what has been said, *Page 250 we would observe that this testimony was objected to on the ground that the witness Weldon was not an expert. This, as has been often said, is not a certificate of the judge that he was not shown to be an expert, but merely the assertion of appellant's ground of objection. The bill was not full upon this question.
Appellant complains, in conclusion, that the testimony is insufficient to support the verdict. We have read the record carefully, and we can not agree to this contention. The facts were before the jury. The court appears to have given a full and fair charge on all the issues presented by the evidence. While there is no positive testimony, aside from that of appellant himself, as to how the killing occurred, yet the circumstances proven were such as to antagonize appellant's defense, and to support the theory of the State to the effect that appellant shot and killed deceased of his malice aforethought, and the jury were warranted in finding him guilty of murder in the second degree. The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING. March 13, 1901.