Whether in a given case in which the accused testifies in his own behalf the reception of evidence of his previous indictment or conviction of a felony is admissible, generally speaking, is not to be arbitrarily determined by the lapse of time alone but the intervening conduct of the accused is a pertinent subject of inquiry and often determines whether the proof is admissible or too remote. See Shipp v. State, 283 S.W. 520, and cases therein cited, including Ard v. State, 101 Tex. Crim. 545,276 S.W. 263. In the present instance, the appellant became a witness in his own behalf; and as shown in the original opinion, a controversy arose touching the admissibility of the previous conviction of the appellant.
From Bill of Exception No. 1, as understood, appellant's counsel, out of the presence of the jury, stated to the court that in September, 1921, appellant had been convicted of a felony and counsel for appellant claimed that proof of the previous conviction was inadmissible because it was too remote and requested the court to cause the state's attorney to refrain from bringing out the matter from the appellant while on cross-examination. When the jury was recalled appellant took the stand as a witness in his own behalf. In qualifying the bill, the court states that he instructed the District Attorney to refrain from making inquiry of the appellant touching his conviction in the year 1921, but gave his consent that inquiry might be made of the appellant touching his having been sentenced to the penitentiary in 1923. *Page 406
In Bill No. 2 it is stated that it was brought out by the state that appellant had been convicted of a felony in 1921. However, this is controverted by the qualification of the bill by the trial judge wherein it is stated that the question asked by the District Attorney was as follows: "Isn't it a fact that on the third month, sixth day 1923 you were convicted and sentenced to serve life imprisonment from San Antonio?"
From the qualification it also appears that appellant answered, "No," and "explained his answer, as shown in the bill, which explanation," as understood, is as follows: "I will answer that 'No' with this reservation, sir: That I was sentenced previous to that, and that's when my sentence was commuted. I was sentenced to death in Sept. of 1921 and Governor Neff commuted my sentence to life imprisonment at that date, I think it is about the date, — one of the hardest governors, supposed to be, that the state ever had on crime."
The details of the conflicting views of counsel with reference to what is shown by the record are recited with more elaboration in the original opinion. However, as the contention is understood, it is claimed by the appellant that the state brought out the conviction of the appellant in 1921 in opposition to the ruling of the trial court in the discussion of the matter in the absence of the jury. The position of state's counsel is to the contrary. The court's qualification of the bill (against which there is addressed no exception by counsel for the appellant) apparently verifies the state's version. Under such circumstances, this court has no choice other than to treat the bill, as qualified, as reflecting the true facts. See Barnett v. State, 43 S.W.2d 449; La Fitte v. State, 54 S.W.2d 136. Nothing in the record indicates that the question which the court recognized as having been propounded by state's counsel related to a transaction shown by the evidence to have been inadmissible by reason of its remoteness. No circumstances leading to such conclusion have been perceived in the record. As the record is understood, appellant was convicted of murder in 1921 and the death penalty assessed. Thereafter, the Governor commuted the sentence to life imprisonment and the appellant remained in prison until his discharge in 1926. The present offense was committed in 1932. As stated above, the state attempted to eliminate the conviction of 1921. As we view the record, it is by no means clear that the state, for the purpose of affecting the credibility of the appellant as a witness in his own behalf, could not properly avail itself not only of the transaction of 1923 but that of 1921 as well.
In addition to his main charge the court gave to the jury *Page 407 two special requested charges prepared by counsel for appellant. One of these charges contains the following: "Now, if you believe from the evidence that the deceased, Charles Peters, at the time of the difficulty had taken or was attempting to take and remove a certain house block from the foundation of the barn which the defendant was constructing, against the consent of said defendant, and after being warned by defendant not to take or remove said block, then the defendant would be justified in using all reasonable and necessary force to prevent the taking and removal of same by deceased. But he would not be authorized to take his life to prevent such unlawful taking or removal, without exhausting all other reasonable means to stop the deceased before resorting to the act of killing."
In another requested charge given the following appears: "You are charged, in connection with the Defendant's Special Requested Instruction No. 1, relating to the justification in taking the life of the deceased on account of his taking or attempting to take a certain house block, and also in connection with the general charge of the Court upon the law of self-defense, that if the acts of the deceased at the time he took the house block raised in the mind of the defendant a fear of serious bodily injury or death, the defendant had the right to take the life of the deceased. You are further instructed in this regard that should you believe from the evidence that the defendant drew his pistol and leveled it at the deceased after the deceased had taken possession of the house block and commanded him to drop the same, that the defendant in thus drawing his pistol was justified in so doing, if his only purpose thereby was to cause the deceased to desist from taking possession of the block. You are further instructed that should you believe from the evidence that the defendant leveled his pistol at the deceased for the purpose of making the deceased desist from removing the house block and keeping possession of the same unless the defendant would pay for the cypress log, and that after said pistol was so leveled at the deceased, the deceased threw the house block at the defendant and advanced toward him, and that if the defendant then took the life of the deceased in apprehension of suffering death or serious bodily harm at the hands of the deceased, or of Kobsell, then you will find the defendant 'not guilty.'
"In this connection you are further instructed that the defendant had the right to act under the facts then existing, as viewed from his own standpoint."
In the main charge the law of self-defense was elaborately, and so far as we are able to judge, accurately given to the jury. *Page 408 From the paragraph of the charge submitting the issue of murder without malice the following is taken: "* * * but you do not find from all the facts and circumstances in evidence before you, that in such shooting, if any, the defendant, George W. Stephens, acted with his malice aforethought, or if you have a reasonable doubt thereof, then you will find the defendant, George W. Stephens, guilty of murder, and assess his punishment at confinement in the State penitentiary for any term of years not less than two nor more than five years."
Adverting to the criticism of the charge of the court in instructing the jury upon the subject of murder without malice, which criticism is found discussed in the original opinion, we feel constrained to adhere to the position advanced and stated in the original opinion upholding the action of the court. As a matter of contemporaneous history, as well as the expressions found in the act of the Legislature embraced in Chapter 274, Acts of the 40th Legislature, Regular Session, changing the offense of murder and abolishing the offense of mansaughter, it is manifest that the judicial conclusion or declaration that the offense of manslaughter still remained a part of the law of this state would be a perversion of the facts. Chapter 60, Acts of the 42nd Legislature, Regular Session, was not to re-enact the law of manslaughter but was intended to clarify the legislative meaning in the enactment of article 1257a as part of chapter 274, supra. Article 1257a, by its terms requires that in a prosecution of the offense established by chapter 274 (being article 1256), all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the homicide may be considered by the jury in determining the punishment to be assessed. The amendment of chapter 274, appearing in chapter 60, Acts of the 42nd Legislature, serves to identify some of the relevant facts which should be received by the court and which, in a proper case, might be considered by the jury in reaching the conclusion that the accused acted with malice. Since the enactment of chapter 60, supra, known in the annotations as article 1257c, the court has, on various occasions, in express terms, rejected as unsound the contention that the provision had the effect of re-establishing the law of manslaughter either in effect or in substance. Among the cases may be mentioned Birchfield v. State, 60 S.W.2d 444.
The contention that the new murder statute, article 1257c, created two offenses, — one of murder and one of murder without malice — has been rejected in a number of opinions of this court. See Herrera v. State, 36 S.W.2d 515; Hunt v. State, 59 S.W.2d 836; Chappell v. State, 61 S.W.2d 842; Ex *Page 409 parte Conway, 118 Tex.Crim. Rep., 37 S.W.2d 1017.
As stated in the original opinion, the special charge requested by the appellant did not properly interpret the legislative intent in enacting the part of the statute discussed above. The special charge is subject to the criticism that it tends to take away from the jury the decision of whether or not there was malice and to tell them that under certain circumstances there was no malice actuating the accused. The charge given by the court, which is quoted in the original opinion, while not in all particulars accurate, was not calculated to injure the rights of the accused. No exception was reserved to the main charge. Under such circumstances, the instruction would come within the purview of article 666, C. C. P., 1925, forbidding a reversal upon a charge of the court which, though not as full as might be desired, was not harmful.
The motion for rehearing is overruled.
Overruled.