The offense is manslaughter and the punishment is three years in the penitentiary.
This is the second appeal of this case. Disposition of the first appeal is found in 262 S.W. 85, where a sufficient statement of the facts is made.
Appellant's first complaint is at the action of the court in overruling his first supplemental motion for a continuance. This motion was based on the ground that the appellant was sick and unable to advise with his counsel in the defense of his case. This issue was contested before the trial court and proof introduced touching the physical condition of the appellant. After hearing the evidence on the issue the trial court decided it against the appellant. The record discloses the testimony that was heard on this matter and we are not in a position to say after a careful review of the same that the trial court abused his discretion in holding that the appellant's condition was not such as to make it impracticable for him to advise with his counsel and to stand trial in the case. The only testimony offered was that of two physicians and their testimony is so indefinite and uncertain as to preclude us from saying that the trial court's action in the matter was error.
We think there is no just ground for complaint at the court's action in refusing to limit the testimony of the wife of the deceased. This witness testified in effect that the deceased told the defendant in her presence that the defendant had gotten him into trouble and that if he, the defendant, did not help him out he would turn the whole matter in, and that the defendant replied that if he did he, the deceased, would wake up in hell. It is appellant's contention that this testimony ought to have been limited by an instruction advising the jury that they could consider it only for the purpose of showing motive. The learned trial court correctly refused to do this. Such an instruction would have been directly on the weight of this testimony, for it was not only admissible for the purpose of showing motive but it was also admissible as at least a conditional threat and the jury had a right to consider it as such.
What has been said with reference to the testimony of the *Page 342 wife of the deceased also applies to the testimony of E. R. Burns. His testimony was admissible not only for the purpose of showing motive but it was admissible as a conditional threat also.
The conversation between witness Burns and Ed Peach is made the subject of complaint. Burns testified that the witness Peach came into his place of business the next morning after the shooting and made the following statement: "I know all about this affair and I want to tell you I don't want to testify in the examining trial because Ballard (the defendant) owes me about sixty dollars and if I do testify it will be against him and they will likely break his neck."
Appellant complains at the action of the court in refusing to limit this testimony to impeachment purposes alone. The record discloses that the testimony of Burns with reference to the statement made by Peach, except that part where he expressed his opinion that appellant was guilty was limited in the charge to impeachment purposes alone. The portion wherein he expressed his opinion as to appellant's guilt was excluded on appellant's motion. Appellant contends, however, that the court should have gone further and instructed the jury in his charge not to consider for any purpose that part of Burns' testimony to the effect that each had expressed his opinion as to the appellant's guilt. The record discloses that this testimony was excluded by the court and in fact appellant's objection to the charge shows this fact and we think that this sufficiently protected appellant's rights in the matter. We know of no rule that would make it reversible error in this case for the court to fail to instruct the jury to disregard testimony that the court had already excluded.
We think that no reversible error is shown in the cross-examination of the witness Ed Bigby. The conversation elicited by the state as shown by the court's qualification of the defendant's bill of exceptions was a part of that inquired into by the appellant himself while the witness was testifying in his behalf. The court sustained appellant's objection as to any statement the deceased may have made to the witness about the appellant and the deceased's wife and the court in his qualification of the bill certifies that the question was framed in an entirely different manner to the question relating to the same matter on a former appeal and that the question as framed did not suggest an improper relation had existed between *Page 343 defendant and the wife of the deceased. Under these conditions reversible error is not shown.
We have carefully examined the other matters raised by appellant and have reached the conclusion that no error is shown in any of them.
Finding no error in the record, it is our opinion that the judgment of the trial court should be in all things affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and aproved by the Court.
ON MOTION FOR REHEARING.