Appellant was convicted in the District Court of Smith County of manslaughter, and his punishment fixed at confinement in the penitentiary for a period of five years.
The homicide occurred at a baseball game at which a dispute arose between appellant and deceased, the immediate cause being a dispute over a pocket-knife. After a hot debate over the ownership of the knife deceased started to walk away with it and appellant grabbed a baseball bat and struck deceased upon the head with it, the blow causing deceased to stagger and fall, and later become unconscious. He was still later removed from his home some miles across the country in and automobile to a sanitarium and an operation performed upon his head, which disclosed that the skull had been crushed by said blow, and the physicians testified that his death was thereby produced. There were various theories of the defense, one of them being self-defense, and another that the death of deceased resulted from neglect and other causes intervening between the blow and death.
Appellant's first bill of exceptions was to the refusal of the trial court to quash the venire, the ground of the motion being that appellant's *Page 595 name was Waters and the venire was issued in the name of Walters. The court directs that the original writ be sent up with the transcript, and it was done. An examination of same shows that it is endorsed, The State of Texas vs. Johnnie Waters, and that on the inside appellant's name was spelled Watters. We think the motion correctly overruled.
The second bill of exceptions was to certain remarks of the court, called by appellant verbal charges to the jury. Nothing in said remarks relative to the suspended sentence law, appears to militate against the rights of appellant. The court in effect told the jury that the suspended sentence law was made for the benefit of young men and first offenders, but that it should be given to any man who was entitled to it. Appellant's proof in the case seemed to show without any contradiction that he had never been convicted of a felony, and that his life had been as free from blame as that of any ordinary citizen. The remarks are set out at length. It is shown that the remarks were made on Monday morning when the jury for the week and the venire in this case were all present in the court room. The remarks of the trial court were entirely appropriate. If juries were cautioned before impaneled, as was done in this case, against deciding cases by lot and thoughtless and careless separation while impaneled, and discussing the failure of the defendant to testify, it might obviate reversals of cases for such reasons. There is nothing in appellant's complaint.
A bill of exceptions was taken to the court's refusal of a continuance. The same facts stated as expectant from the absent witness were given in evidence by other witnesses. It was shown that the continuance sought was a second one. Same should not have been granted for cumulative testimony.
Several bills relate to the objection of the testimony of the mother of deceased. She said that when brought home he was unconscious. Over objection it appears that she further stated that he could neither see, speak nor recognize persons. This would appear to us to be reasonably true of every person who was unconscious. No harm was done by permitting the witness to make this statement. The other complaints of the testimony of this witness are, that she said that she did what she could for her boy; that she did whatever the doctors told her to do for him; that she did not leave undone anything she was told to do for him. As above stated, an issue in the case was whether the death of the deceased was the result of negligence or of some other cause save that of the blow inflicted upon him by appellant. It was proper to permit the mother, who was with him and waited upon him from the time of injury until death, to testify to the matters mentioned above. Appellant was accorded full opportunity to cross-examine her as to all of the details as to her care and attention to deceased, and what was done and not done for him during the time after his injury. *Page 596
By bill of exceptions complaint is made that a witness was allowed to state that appellant did nothing to aid the deceased after he was injured, and that appellant himself was asked if he did anything to aid deceased after he was injured. This testimony would be admissible as affecting the animus and state of mind of appellant toward deceased, and as further reflecting the fact that appellant was not in position to complain if deceased was neglected and suffered therefrom, after the injury.
Complaint is made that Dr. Bussey was not allowed to answer a question of appellant the effect of which was to show that the tendency of an automobile ride a long distance across the country would be to injure deceased. The court qualifies the bill by referring to the statement of facts, from which it appears that Dr. Bussey testified fully in regard to the subject matter of this inquiry.
Dr. Northcutt, a practicing physician, was present at the operation upon the head of deceased and administered the ether to him; he saw the bone removed from the head of deceased, and gave it as his opinion that death resulted from a shock caused by a blow on the head. The witness was an expert and the testimony was entirely proper. The issue of whether death resulted from the blow or other causes was in the case.
Various bills complain of the action of the State in asking some of appellant's witnesses relative to his being charged with a crime in Navarro County. The State has the right upon cross-examination of witnesses as to the good character of the accused, to refer to instances of misconduct on his part as tending to rebut his possession of such character. This was done in the instant case and inquiry of of such witnesses, of appellant's connection with a crime in Navarro County was made. It was objected to, and the State informed the court that it expected to have witnesses from Navarro County to support before the jury the matter inquired about. As the case drew to a close and said witnesses had not appeared, the State asked the court below to postpone the case until the next day in order to give them opportunity to get said witnesses. This the trial court refused to do, and then instructed the jury not to consider as against appellant any questions asked by the State relative to any crime committed by appellant in Navarro County. We think this entirely negatived the possibility of any injury.
Complaint is made that a witness was asked by the State, referring to appellant, if he was not just an ordinary negro. The possible injury of a question such as this would seem so slight as not to merit being the subject of a bill of exceptions. The surroundings and the settings of the question do not appear. We cannot know why the State desired to ask such a question, but are wholly unable to see any possible injury.
A number of witnesses testified for appellant that his reputation for being a peaceable law-abiding citizen was good, and that they had *Page 597 never known of his being accused of crime. Appellant had filed an application for a suspended sentence. The State asked appellant upon cross-examination if it was not true that on one occasion while riding horseback he ran over a girl near Starville. The bill of exceptions is wholly defective in that it fails to set forth the connection or surroundings which would show the question to be immaterial. The appellant answered the question in the negative, and the objection of appellant seems to be to the question as asked. There might be many circumstances arising in which the evidence could be material. In order for us to conclude that injury results and error was committed, it is necessary that sufficient facts be stated in the bill from which we may know that error was committed and injury done.
Appellant has six bills of exception embodying the exceptions taken by him to the charge of the trial court. We have carefully examined each of said bills, which are too long to be set out in extenso, and which do not embody any matter affecting any settled rule of practice; and we conclude that none of said bills presents any error.
A number of special charges were asked by appellant, each of which has received our careful attention. Many of them are repetitions of each other and of other special charges given by the court and of matters contained in and covered by the main charge of the court. The charge of the court as given and as amplified by eleven special charges given at the request of appellant seems to us to fully present every theory of the case supported by any evidence, in a clear and fair way, and we are unable to perceive any error committed by the trial court in the refusal of any of said charges. Many of said charges relate to things claimed by appellant to be adequate cause to reduce a killing to manslaughter, and the manner and form in which charges relative to manslaughter should be worded, and to issues relevant only in determining whether a given homicide be manslaughter; all of which questions pass out in view of the fact that the jury concluded that manslaughter was the offense of which appellant was guilty and he was so adjudged. Many of said special charges are on the weight of the evidence, enumerating various and sundry facts, in which the court is asked to instruct the jury what would constitute sufficient ground for a killing in self-defense.
There are forty-four bills of exception contained in this record, and thirty-five special charges asked on behalf of appellant. It is manifest that this court cannot so extend its opinion as to discuss each of said bills of exception and special charges. If this court was of opinion that the trial was in any material respect unfair, or that any injury had resulted to appellant from any action of the lower court or jury, or that any of said special charges or bills of exception contained matters, the discussion of which would shed light upon any rule of procedure or question of law, this court would discuss the same and set it forth in its opinion, but where the contrary appears to us, we can see no benefit to the appellant or to the profession in an extended *Page 598 discussion of the errors complained of either in the refusal of special charges or in the overruling or sustaining of objections to evidence.
In his 42nd bill of exceptions appellant enumerates twelve different grounds of complaint. A bill of exceptions of this character does not come within the rules, and the trial court approves same with the statement that the greater part of the matters above presented are presented elsewhere in separate bills, and that he does not certify that the questions or remarks were for the purposes stated.
Appellant has a bill of exceptions to what he calls the misconduct of the court in reprimanding a witness who persisted in repeating certain hearsay testimony after being told by the court not to state it again. It was shown that the court stopped the witness and said that he had warned him twice before and was going to fine him if he did it again. We do not think it error for the court to warn a witness against a violation of his orders, nor to state to the witness if he continues that he would be compelled to fine him.
Appellant's 44th bill of exceptions is a repetition of the ten ground of his exception to the court's charge, which matters have been made the subject of separate bills of exception theretofore appearing in the record.
In the lengthy and able brief of counsel for the appellant much complaint is made of unfair practices on the part of the State's attorney in the asking of questions and the making of sidebar remarks claimed by appellant to be calculated to prejudice the jury against him and to belittle the objections and complaints made on behalf of appellant. All of such matters that are legitimately complained of by bills of exception have received our attention, and, in so far as we deemed same necessary, have been discussed in the opinion. We do not conclude that any of said matters, or all of them in the instant case, amount to enough to justify a reversal; but we wish again to urge upon State's attorneys that there is no need for the attorneys for the people to resort to such methods, to any extent. In the trial of causes involving life and liberty to the citizen, whatever be his standing or estate, whether he be of high or low degree, the procedure and result involve the most serious matters. Such trials are not to be made mere opportunities for verbal sword play between competing counsel, nor should the fair judgment of the jury be affected or influenced by aught save the consideration of the testimony and its effect, under the law as presented. Arguments and matters of procedure, having any other effect than to aid in the attainment of justice, should be omitted.
Finding no reversible error in this record, the judgment of the lower court will be affirmed.
Affirmed. *Page 599
ON REHEARING. May 3, 1922.