The appellant was charged by indictment in the district court of Shelby county with murdering one John Richards by shooting him with a pistol, and convicted in said court of the offense of manslaughter, and his punishment assessed at five years confinement in the penitentiary.
This is the second appeal of this case. The first appeal will be found in the case of Squires v. State, 242 S.W. 1024.
The appellant complains of the action of the trial court in permitting the State's witness, Mrs. Alice Grubbs, sister of deceased, to testify that in the morning about eight o'clock on the day of the homicide, when the deceased left home, "I know of my own knowledge that he was going to cut wood", because said testimony was hearsay and because same was unknown to the defendant. These bills do not affimatively show that the defendant did not know of said movements and actions of the deceased at said time and for that reason same are defective; and, under the rule of this court, of long standing, we are not required to consider same.
There is complaint raised in bill of exception No. 3, to the action of the court in refusing to strike out the testimony of certain witnesses for the State, who had testified on direct examination to the bad reputation of the defendant, and upon cross-examination stated they based their testimony upon what they had heard just prior to the date of the marriage of the defendant, which the record shows to be about seven years previous to the homicide. These witnesses qualified and testified on direct examination that they were acquainted with the general reputation of the defendant in the community where he resided, and it was bad. We think this objection would go more to the weight of the testimony than to the admissibility of same. Bibb v. State, 86 Tex.Crim. Rep., Opinion 117.
Appellant complains of the action of the court in permitting the State on cross-examination to ask defendant's wife and have her testify that she rode with the defendant on the morning of the killing to Edward Hammer's house, the place of the homicide, because said question and answer was not germane, to anything brought out by the defendant from said witness on direct examination. If this was error on the part of the court, we are unable to see where it was harmful to the defendant in this case, or resulted in any injury to him.
The testimony, as developed by the State's witnesses, Tom Hammer and Ed. Hammer, brothers-in-law of the defendant, and brother to the defendant's wife, without objection, was that the defendant and his wife went together in an automobile from the residence of Tom Hammer to the residence of Ed. Hammer on the morning of the homicide and both of said witnesses testified without objection that the defendant and his wife when they reached the residence of Ed. *Page 311 Hammer went into the house, the place where the homicide afterwards occurred. We are unable to see from any standpoint where this testimony in any manner could have possibly injured the defendant as disclosed by the record of this case.
In bill of exception No. 5, appellant complains of the action of the private prosecuting attorney in asking the defendant's wife upon cross-examination relative to going with the defendant in a car to her brother's the following questions: "And you went in the house with him?" "You came in behind him?" "Did either one of you go in the house?", all of which questions when asked were objected to by defendant and sustained by the court. What we have said relative to the testimony of the witnesses, Tom and Ed. Hammer, both applies to these questions, and their testimony clearly showed that the defendant's wife did go with him and went in the house with him and we see no reason for complaint of the defendant at the action of the court in this particular, for the reason that the court's ruling appears extremely lenient towards the defendant. Even if there was error in any of the particulars above mentioned, we would not be inclined to reverse this case in these particulars, as this errors appear harmless, if any committed.
After a very careful consideration of this entire record, we fail to observe any error in the trial of this case by the trial court and are of the opinion that the defendant has had a fair and impartial trial and accordingly affirm the judgment of the trial court.
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