Appellant was convicted of murder in the second degree, and his punishment assessed at confinement in the penitentiary for a term of fifteen years; hence this appeal.
The first bill of exceptions is as follows: "The State proposed to prove the name and age of the young lady (Miss Mitchell) about whom the evidence showed the wife of the defendant and Will Swanner had made statements to the effect that they had seen her kissing deceased, Will Willard. To the proving of her name and age, the defendant, by counsel, objected, because such evidence was immaterial and irrelevant, and was calculated to prejudice defendant in the minds of the jury. But the court overruled the defendant's objection and admitted the testimony, to which ruling and action of the court defendant at the time excepted," etc. This bill leaves us utterly in the dark as to what proof the State in fact made as to the age of Miss Mitchell. For aught that we know, she may have been quite a young lady, or an old maid. At the outset, we are informed that her name was Miss Mitchell, but the bill does not show that this proof was made by the State. But, more than this, we are utterly at a loss to understand how proof of the name and age of a party about whom the charge of kissing is said to have been made could have prejudiced appellant. There was no objection urged as to the testimony in regard to the wife of defendant and his codefendant, Will Swanner, having stated that they saw the deceased kissing a young lady. But the objection was merely in regard to the name and age of the young lady. This evidence does not appear to have been hearsay, irrelevant, or immaterial. On the contrary, it appears that, after the State had proved that the difficulty between defendant and Will Swanner and deceased grew out of statements made by the wives of defendant and Will Swanner, to the effect that they had seen deceased kiss a certain young lady, as a part of that matter it was competent to show who the young lady was.
The second bill of exceptions is as follows: "When Bill Alexander was on the stand as a witness in his own behalf on the trial of this case, the State's counsel, while cross-examining the defendant, asked and examined relative to the following matters: (1) Whether he did not tell Leander Crow, about half an hour after the difficulty, and at *Page 403 the place where it occurred, in reply to a statement there made by the said Crow to the effect that it was a cowardly affair, and Swanner would never have cut him (Crow), as follows: 'Yes, he would.' (2) Whether Swanner did not tell him deceased had stopped him at his (deceased's) house, and cursed him (Swanner) and called him a liar. (3) Whether Swanner did not tell him that he (Swanner) had bought a new knife. (4) Whether he (defendant) did not tell one McGrew, the morning of the day of the difficulty, in effect, that, if Willard had said what he (defendant) had heard he said about defendant's wife, he and deceased could not live in the same country. To each and all of which questions and answers the defendant, by counsel, objected, upon the ground that these matters were new, and not germane or relevant to anything brought out in defendant's examination in chief, and were not legitimate cross-examination, but the State was making a witness of the defendant against himself, and seeking to compel him to give evidence against himself, independent of the matters about which he was examined in chief. But the court overruled the said objections, and required and compelled defendant to answer said questions, to which defendant excepted," etc. The bill shows that the State was permitted to cross-examine appellant relative to the following matters, and then follow, seriatim, from 1 to 4, inclusive, the matters about which the State was permitted to cross-examine the witness. But it is not stated what the answers of the witness were to said inquiries. To have been a good bill of exceptions, the answers of the witness to the inquiries should have been stated. We can not help out the bill by presuming what the answers were. Moreover, the bill shows that certain grounds of objection were urged to said cross-examination, to wit, that the matters inquired about were new, and not germane nor relevant to anything brought out in defendant's examination in chief. But the grounds of objection stated do not constitute a certificate on the part of the judge that said grounds were true. The bill should have informed us, by a proper certificate of the judge, that the appellant while on the stand had not been examined as to any matters contained in the cross-examination objected to; that is, either this course should have been pursued, or the examination in chief of appellant should have been stated, so that we might determine whether or not the questions asked were upon issues arising out of, and germane to, the examination in chief. Neither of these modes was followed, and we have in this bill merely the questions asked, and the grounds of objection urged. This, as we understand it, does not raise the issue presented by appellant in his assignment of errors, and in his brief on this question; that is, that, over his objection, the court permitted appellant to be made a witness against himself, which he insists is violative of section 10 of article 1 of our Constitution. If this question, however, had been properly raised, we are inclined to the view that it would not have availed appellant. See Quintana v. State, 29 Texas Crim. App., 401; Hutchins v. State, 33 Tex.Crim. Rep.. The doctrine contained in the Quintana *Page 404 Case was modified in Morales v. State, 36 Tex. Crim. 234; but not in respect to the constitutional question involved. For other authorities, see People v. Tice (N Y App.), reported in 15 Law. Rep. Ann., 699, and note thereto on page 673 (same case, 30 N.E. Rep., 494). There are some authorities holding that, where a defendant takes the stand in his own behalf, his cross-examination will be strictly confined to matters about which he has been examined in chief. Appellant cites us to the followings: 1 Greenl. Ev., sec. 445; Underh. Crim. Ev., secs. 60, 220, 270; Railway v. Stimpson, 14 Pet., 461. But we believe that, under a Constitution similar to ours on this subject, the weight of authority is in favor of the proposition that, where a defendant takes the stand on his own behalf, the State will not be restricted, by a rigid rule, on his cross-examination, to the mere examination of the witness as to matters inquired about in the examination in chief. Having become a witness on his own behalf, he may be cross-examined as to the entire case, although he may have testified on his examination in chief only to isolated matters connected with the offense charged against him.
Appellant, by bill of exceptions, also objected to remarks made by the prosecuting counsel in the closing argument, to the effect that he knew two of the State's witnesses, and that they were worthy and truthful boys. It appears from the bill that, on objection urged to these remarks, the court reprimanded counsel, and instructed the jury verbally to disregard said remarks and not consider the same. In the absence of any requested instruction on the subject, this action of the court was sufficient. In addition to this, however, the bill does not inform us that the two witnesses had testified to any facts that were material to the State.
In his motion for new trial, appellant raises a number of objections to the charge of the court. We have examined said charge carefully, and it occurs to us that the same is an admirable exposition of the law of the case, as applied to the facts proved. However, we will discuss such of the objections urged as we think call for discussion.
Appellant objected to the seventh paragraph of the court's charge on the ground that the court instructed the jury, "When an unlawful killing is established, the condition of the mind of the party killing, at the time, just before, and just after the killing, is an important consideration in determining the grade of the homicide," etc. Appellant complains that this charge is on the weight of the testimony. We can not so regard it. It is merely an instruction to the the jury to do exactly what it was their duty to do; that is, to consider all the testimony in the case, — before, at the time of, and subsequent to the killing, — in order to determine the state of mind of appellant at the time the killing occurred. It was neither a charge on the weight of the testimony, nor is the charge complained of, when considered in connection with that portion of the court's charge, any assumption on the part of the court that appellant was guilty of some grade of culpable homicide. *Page 405
Appellant also complains of the twelfth, seventeenth, twenty-first, and twenty-second paragraphs of the court's charge, on the ground, as he urges, that by said charges the court authorized the jury to convict defendant, "if the offense was committed in pursuance of a common intent on the part of Will Swanner and the defendant, and in pursuance of a previously formed design, etc., but the court nowhere tells the jury what the character of such common intent and previously formed design must be; that is, that it must have been to take the life of Willard, or do him serious bodily harm." And, as contended by appellant, it was error to so define the common intent and design. By reference to paragraph 12 of the court's charge, it will be seen that same that same is a part of the court's charge on the law of principals. Paragraphs 11 and 12 embody the law on this subject, and it is in accordance with our statute defining principals. Following this, the court, in paragraph 13, instructs the jury, in a proper manner, that if they believed from the evidence beyond a reasonable doubt, etc., that Swanner, of his express malice aforethought, killed W.T. Willard, and that defendant was present and acted together with the said Swanner in the commission of said offense, if committed by him; and if they further believed from the evidence that said offense was committed in pursuance of a common intent on the part of the said Swanner and the defendant Alexander, and in pursuance of a previously formed design, in which their minds united and concurred, and was actually committed during the existence and in the execution of such common design and intent; etc.; or if the jury believed that the defendant Alexander was present when and where said offense was committed by the said Swanner, if committed by him, and then and there knew the unlawful intent of said Swanner, if his intent was unlawful, and did aid him by acts, or encourage him by words or gestures, in the commission of said offense, — then to find the defendant Alexander guilty of murder in the first degree, etc. Now, having defined who were principals, and having charged as to Swanner's guilt, by whom the actual killing was done, then it was entirely proper for the court to instruct the jury, if they believed that Alexander acted with Swanner in the commission of said offense in pursuance of a common intent on the part of the said Swanner and Alexander, and in pursuance of a previously formed design, in which their minds united and concurred, etc., without telling the jury in that connection that the common intent must be to kill the deceased. This followed as a natural sequence from what had gone before, and it occurs to us that the insistence of appellant in this connection is hypercritical. It is not necessary to discuss the other paragraphs above cited, as what we have said equally applies to them.
With reference to paragraph number 21, appellant particularly complains that the court instructed the jury to convict defendant, if he was present and made himself a party to the difficulty between deceased and Swanner. If this were all the charge in that connection, there might be something in this objection; but the language of the charge *Page 406 does not bear out the suggestion contained in appellant's brief, that said charge was indefinite and uncertain, and calculated to mislead and confuse the jury. This is a charge on manslaughter. The court, after instructing the jury with reference to the killing by Swanner, then proceeds as follows: "If you further believe from the evidence beyond a reasonable doubt that the defendant Bill Alexander was present and made himself a party to the difficulty, if any, between the said Will Swanner and said W.T. Willard, and acted together with said Swanner in the commission of said offense, if any, then you will find the defendant Bill Alexander guilty of manslaughter, and assess his punishment," etc. The court had already told the jury what it took to constitute a principal, and the charge here, of course, was understood by the jury in the light of the preceding charge, defining who were principals; and they were properly told, if appellant was present and made himself a party to the difficulty, and acted with the said Swanner in the commission of said offense, then he would be guilty of manslaughter. But the jury evidently was not controlled in anywise by this charge, for they found the appellant guilty of murder in the second degree.
The court gave a general charge on manslaughter, and then gave a special charge predicated on insults to a femade relative. While there was nothing really in the case calling for a general charge on manslaughter, and the special charge would alone have been sufficient, yet certainly appellant can not complain. He says, however, there was nothing in the evidence calling for a charge on manslaughter predicated on an insult to a female relative. We can not agree to this contention. There was testimony that appellant had been informed on the day before that deceased had said of his wife that, if she circulated the report that he had kissed Miss Mitchell, she was a bitch. It is not made clear that appellant had met deceased, since he had heard of said matter, until at the time and place of the homicide. While it may be that other matters actuated him in the difficulty, still the court was not authorized to deprive him of his defense of manslaughter, under the facts of this case; and the court would not have been justified in withholding the charge on this subject because, in his opinion, the difficulty did not occur about this, or he believed that appellant's mind was not excited on said account. The matter was introduced in evidence, and it was not only proper, but requisite, that the court should have charged upon it.
We have examined the court's charge on provoking the difficulty by Swanner, and, in our opinion, the facts proven authorized a charge on this subject. The State's witnesses unequivocally testify that Will Swanner was the aggressor, and brought on the difficulty by the use of language which could bear no other construction than a purpose to bring on a difficulty; and we do not understand that the defendant's witnesses, or even the defendant himself, differ with the State's witnesses as to this matter. The State's witnesses show: That deceased was in a certain storeroom and postoffice, in the village of Musgrove. He was standing near the door. Will Swanner, defendant Bill Alexander, *Page 407 and his brother John approached said store, stepped up on the gallery; and, in a short time, Will Swanner stepped in the door and accosted Willard, the deceased. He said, "You took advantage of me yesterday at your house, and cursed me and called me a son of a bitch." Deceased replied, "I didn't do it;" and Swanner said, "Well, you called me a liar then, which is just as bad," and said to deceased, "Now, do you repeat it, you cowardly puppy?" Deceased replied that he did, and Swanner immediately advanced on deceased, and began cutting him with a large, new knife which he had in his hand when he came on the gallery. Defendant, in his own behalf, says: That Will Swanner said to deceased, "You took advantage of me yesterday at your own house, and cursed me and called me a liar." Swanner said something about Willard repeating it, and Willard said he did repeat it, and then struck Swanner with a stick, and then the fight began. He says, however, "I did not know that Swanner had a knife at the time." We think that this testimony, under the circumstances of this case, sufficiently raised the issue of provoking a difficulty on the part of Swanner, and that appellant himself was apprised of the fact that Swanner was the aggressor in provoking the difficulty. So the charge was not an abstract proposition, as claimed by appellant, but the court applied the law to the facts in that connection. Nor should the court have submitted the words used in connection with the charge.
Appellant also urges that the court erred in failing to charge on the law of circumstantial evidence, claiming that this is a case depending on circumstantial evidence for the conviction of appellant. The fact of appellant's going to the scene of the homicide in company with Will Swanner, and his being present at the time, and what he did there, is proved by positive evidence. Of course, a number of circumstances are detailed, both before and after the time, tending to show his malicious intent in being present, but this does not make the case one of circumstantial evidence. The rule is well expressed by Mr. Thompson on this subject, to wit: "Where a criminal intent is to be established by circumstantial evidence, the proof ought to be not only consistent with the defendant's guilt, but must be wholly inconsistent with any other rational conclusion than that of the defendant's guilt. This rule is proper when the act which is claimed to be criminal is sought to be established by circumstantial evidence; 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 rule does not apply." See 2 Thomp. Trials, sec. 2505; Russell v. State, 38 Tex.Crim. Rep..
Appellant further insists that the evidence is not sufficient to support the verdict of the jury, the grounds alleged being (1) that there was no evidence of any agreement or conspiracy between defendant and Swanner to kill Willard; (2) there is no evidence that defendant ever knew Swanner intended to kill Willard, if he did so intend; (3) there was no evidence that defendant either aided Swanner by acts, or encouraged *Page 408 him by words or gestures, in the commission of the offense. We can not agree to these contentions. The evidence, we think, makes it quite clear that Swanner provoked the difficulty, and of his malice slew deceased; and we take it, if the jury encountered any difficulty at all, it was with reference to the participation of defendant in the murder. But in this regard the State introduced evidence strongly tending to show that he had malice against deceased. In fact, the cause of the difficulty appears to have been more his than Swanner's. These parties (Swanner and the defendant) were both married men, brothers-in-law, and lived together. The wife of defendant reported that she had seen deceased kiss a certain young lady on one occasion. This came to the ears of the deceased, and he denounced it as a lie; and the author, if a man, he stigmatized as a son of a bitch, and, if a woman, as a bitch. This was communicated to appellant. At least he appears to have known it the day before, and to have threatened deceased on account of it. Deceased's father on the night before undertook to reconcile the parties, and told defendant, if his boy was wrong, he would make him apologize, or whip him. He asked defendant to meet him the next day at Winsboro, some six miles distant, which defendant promised to do. The father of the deceased went to Winsboro the next day, and was there to meet defendant when his son was killed at Musgrove. Appellant did not go to Winsboro, and the State's testimony tends to show that he declared he did not intend to go there to fix it up; that he would fix it himself. Appellant, however, explains his reason for not going on other grounds. It is further shown that appellant knew that deceased and Will Swanner had had an altercation on the evening before, and that deceased on that occasion had called Swanner a liar in regard to the matter of kissing the young lady; also, that Swanner, as he says, told him that he had bought a new knife. Appellant says he had not seen the knife, nor is it stated that Swanner told him any reason for his purchase. The State showed that the difficulty occurred at Musgrove on Saturday afternoon, about 2 or 3 o'clock, and, in that connection that it was the habit of deceased to go to Musgrove for the mail on Saturday afternoon. Deceased was a boy about 17 years of age, and lived with his father, two miles west of the village of Musgrove, while defendant and Swanner lived a mile east of that place. On the evening in question, deceased had gone for the mail, and was standing inside of the postoffice. Will Swanner, the defendant, and his brother John Alexander came down the railroad from the direction of their home; and when they got opposite the store, about fifty feet from where the deceased was standing, and in view of him, they turned off the railroad, and came directly to the postoffice. Swanner, at the time he stepped on the gallery, had his knife open in his hand; it having a blade three or four inches long. In a very short time Swanner accosted the deceased, and according to the State's testimony, denounced him as a cowardly puppy, and immediately the fight began; he using a knife, and the deceased, according to some of the witnesses, using a stick. The witnesses *Page 409 say that, as Swanner advanced on the deceased, defendant appeared to grab at Swanner as if to catch him. They say, however, that he made no other effort to interfere during the progress of the fight. The State's testimony shows that he followed Swanner into the store, and kept close to him during the fight; that after Swanner cut deceased down, and the fight had ceased, deceased rose up and said, "Swanner, you damn son of a bitch, you have killed me," and that Swanner then started after him again; that Andrews, who had a barber shop in the building, started to interfere, and defendant told him to let him alone, — that he would attend to him. It is further shown that after the difficulty these parties all retired together and held a consultation down on the railroad. The foregoing is a resume of the substantial features of the testimony. It is urged from this that there is nothing to connect appellant with a participation in the difficulty; anti the fact that he grabbed at Will Swanner as he advanced on deceased, it is insisted indicates, not only that he did not engage in the difficulty, but that he attempted to prevent it. We do not think, however, that this bit of evidence, if it be considered as an attempt to prevent the difficulty, countervails or overcomes the State's case, which not only tends to show malice on the part of defendant towards deceased, but also tends strongly to show that he conspired with Will Swanner to bring on a difficulty with deceased; that they prepared themselves for the occasion, and went together to the scene of the homicide; and that the defendant by his acts and conduct encouraged and abetted Swanner in the attack and slaying of the deceased, Willard. In our opinion, the jury were amply justified in taking this view of the case, and the charge of the court fully covered every phase of the case, both for the State and the defendant. There being no error in the record, the judgment is affirmed.
Affirmed.
[After the above opinion was handed down appellant filed a motion for rehearing, the fourth ground of which is as follows, viz.: "Because this prosecution is for murder by conspiracy 'of two persons,' and the offense was committed in Franklin County, hence under the Act of 1897, the District Court of Franklin County was without jurisdiction of the case."]
ON MOTION FOR REHEARING.