The conviction is for murder; punishment, three years in the penitentiary.
There was testimony to the effect that the appellant about one month prior to the homicide had been caught by the deceased in company with the wife of deceased under such circumstances as might show illegitimate relations existing between them. There was testimony also to the effect that at least a pear prior to the killing that the appellant had been paying attention to the wife of the deceased and that some difficulty had arisen between them. There was also testimony that a short time prior to the killing, appellant admitted to one of the witnesses that deceased had caught him with his wife and in that conversation appellant told the witness that if he had had a gun he would have killed the deceased because he had no right to come in on him. On the morning of the difficulty appellant was going to his work and the deceased intercepted him on the street. Appellant had something in his hand wrapped up in a newspaper which developed to be a pistol. When the appellant neared deceased, the deceased started towards him, one of the witnesses saying that he had a *Page 388 rock in his hand weighing about two pounds, another witness denying that fact, but stated that the deceased crossed over the street and intercepted appellant, whereupon the appellant told him that he did not want to have any trouble with him and if he did not get back he would shoot him; whereupon, deceased replied for him to shoot and appellant fired three shots into the body of deceased, one while he was standing up, the second while in the act of falling and the third after he had fallen to the ground. Appellant fled, throwing away the pistol, and was in a short distance caught by parties who witnessed the transaction.
Appellant contended that the killing was in self-defense.
The case was submitted to the jury under the law of murder with and without malice and that of self-defense both from actual as well as apparent danger. Also a special charge was given telling the jury in effect that if the appellant was rendered incapable of cool reflection by reason of the actions and conduct of the deceased and that while in such condition killed him, such would not be a malicious killing.
Several bills of exception are brought forward for review.
Bill of exception No. 1 complains of the action of the trial court in sustaining an objection to the testimony of J. C. Roberts upon the ground that said testimony was self-serving. The bill shows that the appellant tried to prove by the witness Roberts as to what the appellant stated to him on the day before the killing when appellant came in from making a delivery as to his trying to avoid the deceased and that the deceased was after him every time he got out. There is nothing in said bill which shows that the statement which appellant sought to have elicited was upon any transaction brought out by any evidence on behalf of the state. The conversation which appellant sought to prove by the witness Roberts appears from said bill to have been made the day before the homicide. It was held by this court in the case of Woods v. State,115 Tex. Crim. 373, 28 S.W.2d 554, where it was sought to be proven that the appellant had told the officers the day before that deceased had threatened to take his life and asked them to give him protection, that said testimony was properly refused because it was self-serving. Citing Hart v. State,57 Tex. Crim. 21, 121 S.W. 508; Hardeman v. State,61 Tex. Crim. 111, 133 S.W. 1056; Hardy v. State, 86 Tex. Crim. 515,217 S.W. 939, 8 A. L. R., 1357; Watt v. State,90 Tex. Crim. 447, 235 S.W. 888.
Bills of exception Nos. 2 and 3 complain of the action of the trial court in refusing to allow them to prove by the same witness, Roberts, in sir-rebuttal the facts as set out in bill No. 1. The trial court qualified both of said bills substantially to the effect that the state's attorney's objection was not to the witness testifying to the facts sought to be elicited, but that the objection was to the manner and form of the question; that the court stated to the attorney for the appellant that he could *Page 389 elicit the evidence from the witness by proper question; that the attorney for the appellant thereupon summarily dismissed the witness from the stand and said, "That's all right. Let it go." It is shown by said qualification that the trial court did not refuse to allow the appellant to prove what occurred in said conversation sought to be elicited, but that when the court sustained the objection to the form of the question asked, appellant's attorney refused to pursue same any further.
It appears from bill of exception No. 4 that the state produced the witness Charlie Johnson, who testified on direct examination that he was a brother-in-law of appellant and that it appeared from the testimony of appellant that said Charlie Johnson had married the sister of appellant, but that the said Charlie Johnson and appellant's sister were separated; that in rebuttal to facts brought out by the defense that his wife had divorced him on certain grounds of cruel treatment alleged in her petition, which was exhibited by appellant on examination of the witness in this case and about which the witness was questioned by appellant on cross-examination; that the said Charlie Johnson was allowed to testify in answer to question by the state that the reason that he and appellant's sister were separated was because of improper relations between the appellant's sister and another man and because of immoral conditions prevailing in the home of appellant's sister. Appellant objected to said testimony offered in rebuttal by the witness Charlie Johnson on the ground that it was immaterial and not binding on the appellant, that it was prejudicial and that the state was seeking to impeach the appellant upon an immaterial matter, and that the state was bound by appellant's answer. It is shown by said bill of exception that the matter was gone into by the appellant and that the state was offering in its rebuttal to show the reasons why the separation took place. Not enough of the surrounding facts and circumstances are stated to enable this court to determine the merits of the bill and the correctness of the ruling involved to show that the evidence was inadmissible and that the ruling was erroneous and hurtful to the cause of the appellant, which is necessary in order to determine its admissibility or effect. The bill as presented does not show reversible error. See 4 Texas Jur., secs. 216 and 217, and authorities there cited.
Bill of exception No. 5 shows that in rebuttal of matters brought out by defendant concerning grounds on which the witness Charlie Johnson's wife divorced him as alleged in her petition exhibited to and from which appellant questioned the witness Charlie Johnson in this case that the state again placed the witness Charlie Johnson on the stand and he was allowed to testify in answer to questions by the state as follows:
Q. "Did you treat her brutally and curse and abuse her?"
A. "No."
Q. "Did you threaten her life?"
A. "No." *Page 390
Appellant objected upon the ground that it was immaterial and leading, which objection the court overruled. This bill is subject to the same criticism as bill No. 4, and in addition thereto there was no showing that the appellant was prejudiced by reason of the questions asked and the answers thereto. The permitting of leading questions improperly will not be reversible error in the absence of a showing of prejudice thereby. Branch's P. C., sec. 157; West v. State, 2 Texas App., 474; Montgomery v. State, 4 Texas App., 142; Graham v. State, 73 Tex.Crim. Rep., 163 S.W. 728; Hill v. State,76 Tex. Crim. 269, 173 S.W. 1024.
By bill of exception No. 6 appellant complains of the following statement made by the district attorney in his closing argument to the jury: "Gentlemen of the Jury, why didn't the defendant bring Negro Character witnesses to tell the jury what kind of a character the defendant had?"
Appellant objected to this statement upon the ground that the issue raised by the argument of the district attorney was not raised in the open argument of the state to the jury, and that appellant's counsel had no opportunity to reply to it. The trial court qualified said bill to the effect that the language complained of used by the district attorney was in response to and invited by the argument of the attorney for the appellant to the jury concerning the number of white witnesses that had testified to the good character of appellant. The defendant is not entitled to complain of improper argument of state's counsel which is occasioned and justified by the argument of his own counsel. Branch's P. C., sec. 363; Vann v. State,48 Tex. Crim. 15, 85 S.W. 1064; Roberts v. State,60 Tex. Crim. 112, 131 S.W. 321; Moore v. State, 65 Tex. Crim. 453,144 S.W. 603; Dickson v. State, 74 Tex. Crim. 495,168 S.W. 862.
Finding no error that would require a reversal, the judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.