Appellant was convicted of murder in the second degree, and his punishment assessed at five years confinement in the penitentiary; hence this appeal.
The testimony, briefly stated, shows that deceased was a woman who lived in the town of Honey Grove, Fannin County; that it was rumored, as claimed by defendant, that deceased was having illicit intercourse with a certain negro. The defendant, with one Frank Meyers and Will Earp, was sent down to the house occupied by the deceased about 12 o'clock on the night of the homicide, by the marshal, to ascertain whether or not said negro was there, and if he was, to arrest, or at least detain, him until he (the marshal) could be sent for. It is shown that the parties went there. Two of them stopped at or near the northeast corner of the house. The defendant in the meantime went to the door, and demanded that it be opened, threatening to break it with an ax. He then kicked it open, and immediately the pistol fired. They immediately left the place, and in a few moments a woman's scream was heard at the house. Some of the neighbors gathered in, and found that *Page 595 she had been shot. She died on the next day. Appellant's theory was that he did not intend to fire the pistol. In kicking the door open, it came open easier than he thought for, and the pistol was accidentally discharged. He thought at the time that he fired too high to hit anybody in the building. This theory was supported by his evidence. Other testimony for the State tended to show that he entertained malice against the deceased, because she had his friend Stegall arrested a few days before for an assault with intent to rape her; that be went voluntarily on that particular night; and that he broke open the door and fired the shot in the house intentionally. The witnesses for the State show that he made no claim that night of an accident. A witness also testified that the next day he denied being at the house or shooting into it. The court submitted murder in the first and second degrees, negligent homicide in the first and second degrees, and accidental killing.
Appellant's first, second, third, and fourth bills of exception relate to the exclusion of testimony offered by him, tending to show that the deceased was guilty of illicit intercourse with the negro Charley Thuston; in fact, that said negro was keeping her. The court excluded all of said testimony. Appellant claims that it was admissible for the purpose of showing the good faith of the defendant in going to apprehend the negro at the house of the deceased. If the facts stated are true, it might have authorized the making of an affidavit against deceased and against the negro Charley Thuston by the marshal or any one else, and so authorized the issuance of a warrant under which the parties might have entered the premises of the deceased with some color of right. No warrant was issued, and the parties had no right to go on the premises of the deceased to make this arrest. The testimony in question would have served no legitimate purpose. Notwithstanding the parties had no right to commit a trespass as they did upon the premises of the deceased, yet the court did admit testimony showing the purpose for which they went there; that it was at the instance of the marshal. This was as much as defendant could claim. Nor did the court, in its charge, lay any stress on the illegality of the action of the defendant in going upon the premises of the deceased to make the unlawful arrest; but the case appears to be treated from the standpoint of the charge, as if the parties were lawfully upon the premises where the homicide took place. This was certainly most liberal towards appellant; and, in our view, he can not complain of the action of the court in excluding the testimony set out in his above bills of exception.
Nor was there any error in the action of the court in admitting the testimony of the sheriff of Fannin County as to the statement made by the defendant while in jail and in his custody. The proper predicate was laid, as the sheriff had, just before said statements were made, duly warned him. It was not a privileged communication made to the attorney, but it was made to the sheriff, or at least in his presence, and after he had been warned. Had the attorney desired a private interview with his client, he should have asked it. The statement made, "that *Page 596 there are others implicated," evidently had reference to the homicide; and the fact that he immediately made an attack on the sheriff in an endeavor to escape was legitimate testimony, just as much as evidence of his flight would have been had he fled immediately after the homicide.
The rule of law announced by the court in that portion of the charge presented in bill of exceptions number 7 is a correct rule of law, and was applicable to a phase of the evidence in this case. There was evidence tending to show that the shot was intentionally and recklessly fired into the private residence where the deceased and her two children were, and the court merely instructed the jury that a homicide committed under such circumstances would not be negligent homicide, but would be murder in the first or second degree, as the jury might find from the evidence under the charges defining said offenses.
Appellant complains that the court did not charge on circumstantial evidence. This was not a case depending on circumstantial evidence. Appellant's presence at the place of the homicide, and that he fired the fatal shot, were established by the positive testimony of eyewitnesses. His intent, it is true, was a matter of circumstantial evidence. The State introduced testimony tending to show an intentional shooting, and the defendant's testimony suggested an accidental killing. This would not require of the court a charge on circumstantial evidence. Mr. Thompson extracts the rule from the authorities as follows: "The rule requiring the giving of a charge on circumstantial evidence is proper when the act which is claimed to be criminal is sought to be established by circumstantial testimony; but when the act is proved by direct testimony, and all that remains to be found is the intent which accompanied the act, and which may be inferred from the circumstances accompanying the act, then this principle does not apply." See 2 Thomp. Trials, sec. 2505.
Appellant complains that the court erred in that portion of his charge which instructed the jury that "the rudely displaying and firing of a pistol at or near a private house, in a manner calculated to disturb the inhabitants thereof, is a misdemeanor, under the law," because he says this charge ought to have been limited as to those who were not peace officers. We know of no rule of law authorizing a peace officer to rudely display and fire off a pistol at or near a private residence, in a manner calculated to disturb the inhabitants thereof. The court, however, gave a charge with reference to the right of a peace officer to carry a pistol; that is, after instructing the jury that no person was authorized to carry a pistol on and about his person on premises not his own, he told them that this did not apply to a peace officer or policeman, or a person summoned to aid such officer or policeman, as such officers have the right to carry a pistol. We have examined the charge of the court carefully, and, in our opinion, it covered every phase of the case; and its provisions were liberal so far as the rights of the appellant were concerned. A full charge on accidental shooting was given, which is all defendant could claim under the facts of this case. *Page 597
Appellant was convicted of murder in the second degree, and in our opinion the evidence fully sustains the finding of the jury, and the judgment is affirmed.
Affirmed.
[NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]