Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of thirty-five years, and he prosecutes this appeal.
The theory of the State, which was supported by evidence, was to the effect that bad blood had existed between the parties for some length of time; that on the Sunday of the homicide, about 12 o'clock, Thomas Evans, deceased, and the defendant were in the town of Hutto, both living about a mile east of the town on the same road. Deceased lived a short distance beyond defendant. Deceased left town on horseback some time between 12 and 1 o'clock proceeding towards his home. Appellant also started on horseback, going in the direction of his home, a short time afterwards. On the way, defendant, who was riding at a faster gait, passed deceased. He reached his home a short distance in advance of deceased. When deceased came up he accosted him and demanded to know what he had his knife up his sleeve for. Deceased made some reply to the effect that it was all right, and checked his horse up, but did not stop. Defendant then began to curse and abuse him, and drew his pistol on him, and deceased took his knife out of his sleeve, holding it in his hand, and a wordy altercation ensued. The father of the defendant came out from his house with a pistol and engaged in the altercation. Appellant demanded that deceased put his knife down, which he refused to do, and he then shot him, and inflicted a wound from which he died. The defendant's testimony up to the time of the altercation does not materially differ from the State's. Appellant's testimony, however, tended to show that there was a cessation or abandonment of the difficulty on his part after he first accosted deceased; and that deceased then attacked him with a knife, and was advancing upon him, when he shot and killed him.
Appellant reserved a bill of exceptions to the action of the court in overruling his motion to change the venue, but the same was not filed until ten days after the court had adjourned, and hence can not be considered. Concede, however, that we can consider the same we see no error in the action of the court.
Nor did the court commit any error in its action with reference to the special venire. The court's explanation shows that the *Page 35 summoning of and requiring appellant to take said special venire was within the letter of the law.
Appellant filed a motion to continue the case on account of the absence of the following witnesses: C.S. Fielder, a resident of Val Verde County; Beau McCutcheon, a resident of Brewster County; Mrs. Lizzie Hosman, temporarily residing in Thurber, Palo Pinto County; and Arthur White, residing in Williamson County, but whose whereabouts were at the time unknown. As to the witnesses C.S. Fielder and Beau McCutcheon and Arthur White, they were not served with process, and the diligence does not appear to have been complete. Although defendant was arrested on the 6th of January, process was not issued for them until the 20th of January. The case was tried on the 8th of February. No excuse was shown for failure to have process issued earlier, and for aught that appears, by the issuance of process immediately on his arrest, these witnesses might have been procured. As to Mrs. Lizzie Hosman, it appears that she was served, but that on account of the sickness of her mother she was unable to attend. Appellant stated that he expected to prove by the witness Fielder the following facts: That a short time before the alleged homicide of Thomas A. Evans the witness, in a conversation with said Evans, heard him utter the following threats: "That if said John Highsmith did not leave this country, that he was a dead man, and that he intended to fix him the first opportunity he had." The threat was uttered in a menacing and angry tone, and was made with reference to a difficulty that had previously occurred between the son of deceased and appellant, which threat was communicated to defendant before the killing of said Evans. It will be noted, as to this threat, that no time is stated as to when it was made or when communicated. We know that the previous difficulty between the son of deceased and appellant, referred to, occurred about a year before the homicide. If the threat was made immediately after the first difficulty, deceased may have had numberless opportunities to execute the same, if he had been so minded. Living near each other, as they did, in the same community, deceased must have had a number of opportunities to execute the same, if it had been seriously made. If, on the contrary, it was made and communicated recently before the homicide, it may have had some significance. But we can not indulge presumptions to help out bills of exception in this respect. The threat was conditional to kill Highsmith if he did not leave the country. If Highsmith remained (as he did) in the country, and a number of opportunities were afforded for the execution of said threat, after its communication, it would bear no particular significance after such a lapse of time. The language of Beau McCutcheon is still more vague. It is alleged that he had had frequent conversations with deceased, and that he denounced defendant as a coward, and expressed anger and hatred towards him, and that he threatened him to said witness. When this occurred we are not informed, nor are we informed as to the nature of the threats. By the witness Lizzie *Page 36 Hosman appellant says he expected to prove that some time before the alleged homicide she heard deceased, in speaking of defendant, John Highsmith, say that he was not satisfied with the result of the trouble that had occurred between defendant and his son Joe, and he proposed to see this thing settled; that he used this language in an angry and threatening manner. This is subject to the same criticisms we have made as to the witness McCutcheon's testimony; that is, entirely too general, too vague, and no time was fixed. The testimony of the witness Arthur White is more explicit. As to him it was stated it was expected to be proved that deceased met him on the morning preceding the homicide, and in his presence stated "that there was going to be hell raised with the Highsmiths" (meaning defendant and his father); that he expected to clean out the Highsmiths. In regard to the testimony of this witness, and, indeed, with reference to all threats in that connection, from our view of the record, it does not occur to us that any of the threats were material under the circumstances of the homicide. According to the testimony of all the witnesses, both for the State and the defendant, appellant was the aggressor, and brought on the difficulty. Concede that deceased had his knife, which was a large one, open, and up his sleeve, when defendant passed him on the way to his home, there was no attempt on his part to bring on the difficulty, or use said knife; and, for aught that appears, he had it open merely for his own protection, pursuing his journey to his home. Certainly, if his purpose was to make an attack on defendant with said knife, when he first passed him there was presented a much more favorable opportunity than subsequently occurred when he had passed the home of defendant. According to the testimony, he made no hostile act or demonstration here until he was accosted by the defendant, who demanded to know what he was doing with the knife up his sleeve. So far as the record advises us, he would have passed the house of defendant without so much as having an altercation with him; and it was no offense for him to have his knife open and up his sleeve in pursuing his route home. So far threats served no purpose to qualify or aggravate any act of deceased, because up to this time he was guilty of no hostile demonstration against appellant. But it is said that after the beginning of the difficulty appellant abandoned the same, and that then deceased attacked him with his knife; and that he raised his knife in a threatening attitude, and advanced on defendant, who at the time had a pistol. If he had the knife as described it was evidently a deadly weapon; and, if he was advancing on appellant at the time, the fact that he may have previously threatened to take his life, it does not occur to us, would lend any additional significance to his attitude and acts at that time. If he was making an assault at all on deceased, it was apparently a deadly assault. We are merely conceding here, for the purpose of the argument that there was an abandonment by appellant of the difficulty; but we do not believe the facts bear out this contention. To our minds, the record shows a continuation of the *Page 37 difficulty from start to finish. There was a slight cessation, it is true, when the father of appellant rushed out with a sixshooter, and, according to the testimony of some of the witnesses, called to his son not to shoot; but this was merely temporary. Events followed each other in rapid succession up to the final catastrophe. It will be further noted that none of the threats, except Fielder's were claimed to have been communicated to defendant prior to the homicide. So none of these uncommunicated threats could have exercised any influence on the mind of the appellant, or caused him any additional apprehension, other than was afforded by the attitude and acts of deceased at the time. Accordingly, what it is claimed was said by deceased to Arthur White, could not have influenced him in the least, and, as shown above, such threats would serve but little purpose to intensify an act which, from appellant's standpoint, could bear no other significance than a deadly assault, and did not need the reinforcement of threats.
Appellant excepted to the action of the court in excluding the testimony of F.A. Cheatam to the effect that shortly before the homicide he had a conversation with the deceased, in which he said that sometimes he felt like taking a gun and killing two or three people; that, as he said this, the conversation was interrupted by some one coming up, and a week or two afterwards he met defendant again, and he immediately began talking about defendant's difficulty with the son of deceased, and stated the costs which he was forced to pay were greater than all his doctors' bills, and spoke of the healthy condition of his family. As to the first part of the conversation, it is not shown to have had any reference to appellant. As to the second conversation, no language is shown to have been used by deceased, except he stated the costs which he was forced to pay on account of the difficulty with defendant's son were greater than all his doctors' bills. We can not conceive how this was material.
Appellant, on the subject of dying declarations, reserved the following bill of exceptions: "Be it remembered that on the trial the State was permitted to introduce the evidence of Mrs. A.J. McCutcheon and A.M. Smith as to the dying declarations of the deceased, Thos. A. Evans, upon the predicate as set out in the statement of facts herein, whereupon defendant then and there in open court excepted, because — first, the same was hearsay, and is the testimony introduced of a witness not in court, and the defendant had not the privilege of being confronted by same for cross-examination; second, because the predicate shows that the deceased was not conscious of approaching death, or that death was impending, as required by the statutes." The shape in which this bill is presented, in order to be considered by us, requires an investigation of the entire record as contained in the statement of facts to ascertain the predicate laid, as well as the dying declarations. It occurs to us that the bill should have contained the predicate, as well as the dying declarations. Concede, however, that we must look to the statement of facts in order to ascertain the predicate as laid, as well *Page 38 as the dying declarations, we can not agree to the insistence of appellant. The statement of facts shows that when the predicate was being laid, at the request of appellant, the jury were retired, and the witnesses were examined in the presence of the defendant before the court. It seems to us that, when the jury were brought back to hear the testimony of the dying declarations, appellant, before he should be heard to complain, should then have objected to the proof of the dying declarations until evidence was offered before the jury of the predicate. If, however, by his course, he did not waive this, he certainly could not be heard to complain, unless the predicate, as laid before the court, presented an issue; that is, if the predicate was sufficiently laid in the opinion of the court, and there was no controversy as to the dying declarations being made under the conditions required by statute, then all that was necessary for the jury to hear was the declaration itself, for that was all that they were concerned about. If, however, the testimony showed, as is claimed in this case, that deceased, when he made the statement, was not conscious of approaching death, or if, on the other hand, he then entertained any hope of life, it would have been the duty of the court to have submitted said issue to the jury; and, in order that they might properly judge thereof, it was necessary that they should have heard the testimony on that subject. We have examined the record carefully in regard to said predicate, and, in our opinion, it presents no issue suggesting that appellant at the time entertained any hope of life. From the time he was shot until his death he seemed to be conscious that he was going to die. He told appellant at the scene of the homicide that he had killed him already, and to let him go, so that he could die at home. He told Mrs. McCutcheon and Smith repeatedly that he was going to die, and that he had no hope of recovery. True, according to Dr. Eanes, he asked him if there was any hope of recovery, but the doctor gave him no hope. Dr. Percy says that he told him that it was the opinion of Dr. Flynn and himself that he was not shot through, but the ball had ranged around, and that he would recover, and in reply to this deceased said "he hoped for the best." But he says that this conversation occurred after the first statement Evans had made to the witness Mrs. McCutcheon; so that, if it could be held to have any effect against the overwhelming weight of the testimony, it could not affect the first statement Evans had made to the witness Mrs. McCutcheon. That statement, according to her testimony, was made under the solemnity of conscious approaching death; and the second statement was but a repetition of it. We would further remark that, whatever may have been said by deceased to Dr. Percy, no connection is shown between it, as to time and place, and the statements made to Mrs. McCutcheon or to Smith. Their testimony shows beyond all cavil or controversy that the declarations were made under all the conditions guaranteed by the statute on the subject of dying declarations; and the bare expression of deceased to Percy, "that he hoped for the best," even if it can be construed to mean that he *Page 39 then entertained some hope of recovery, would not affect declarations made at some other time under a sense of impending death. In our opinion, there was no issue on this subject to go to the jury, and it was not necessary that the predicate which was laid before the judge alone should have been reintroduced before the jury.
Appellant excepted to the refusal of the court to give his first special instructions on self-defense, in connection with threats on the subject of appellant's right to arm himself with a pistol to defend himself against any unlawful attack which he apprehended on the part of deceased. There was nothing in this case authorizing such an instruction. The court gave a full charge on the subject of self-defense, covering every phase of the case. He also, in this connection, gave a charge on threats, which, as we have before discussed, was not, in our opinion, rendered necessary by the facts in this case. Appellant requested a special instruction on the subject of provoking the difficulty, and reasonable doubt in that connection; but the same was fully given by the court in its charge. Nor was the special requested instruction on the subject of abandonment of the difficulty by defendant required, as the jury was duly instructed on that subject in the main charge of the court. As to manslaughter, we do not believe it was in this case. The court, however, gave a full charge on this subject. We have examined the charge of the court carefully, and, in our opinion, it is an admirable exposition of the law, especially that portion of it on provoking a difficulty, and, in that connection the abandonment thereof by appellant, and his rights thereafter. Said charge is carefully guarded, and every right of appellant adequately and liberally protected. As stated, however, we fail to see from the record in this case any abandonment of the difficulty on the part of appellant from the time he brought it on, and there was no necessity, in our judgment, for the court to have given this charge. Still appellant can not complain that such a charge was given. Nor do we see any error in the action of the court with reference to the juror Hugh Emerson. The matter was presented to the court on the facts, and under the evidence the court very properly held him a fair and impartial juror. There being no error in the record, the judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.