Under an indictment therefor appellant was tried for the murder of Phil Milam, convicted of manslaughter and assessed the lowest punishment.
As stated by appellant's attorneys in their oral argument on submission and conceded by their briefs, all material facts as to the relations existing at the time of the killing and for some time prior thereto and of other facts surrounding the parties and the killing were proven and established by uncontradicted and uncontroverted testimony, except the facts of the immediate killing. As to the facts of the immediate killing, appellant's testimony, somewhat supported by some other witnesses, would tend to show that he killed deceased in self-defense. On the other hand, the testimony by the State's eyewitnesses, by a considerable preponderance, would show that the killing was not done by appellant in self-defense, but would show murder, or at least manslaughter. We may state herein, if necessary, some testimony in discussing the assigned errors. *Page 576
When the trial began all the witnesses for both sides were sworn, placed under the rule and instructed by the court as usual on such occasions. C.E. Eubanks was an important witness for appellant. He and appellant were officers in the same bank, appellant being president and Eubanks cashier. In cross-examining one of the State's witnesses, appellant asked him if he had not made certain statements to said Eubanks with the view of impeaching him by Eubanks. After the State introduced its testimony and rested, appellant, among others, introduced said Eubanks, and he testified in effect impeaching said State's witness. Upon the cross-examination by the State of Eubanks, it developed that appellant had told Eubanks what said State's witness had testified, in clear violation of the court's instructions when placing witnesses under the rule. The court heard this development and himself began to ask questions, so as to ascertain definitely whether appellant had communicated to Eubanks the testimony given by said State's witnesses. Upon objections by appellant, the court retired the jury, then further investigated this question, and Eubanks swore that appellant had communicated the testimony of said State's witnesses to him. Thereupon, the court entered a fine of $25 each against appellant and Eubanks, and then directed the jury to be returned, which was done. It seems that, as the jury entered, only two of them first entering merely heard the judge tell the clerk: "Assess his fine at $25." They did not know to whom the judge referred. None of this shows any reversible error.
The uncontradicted and uncontroverted testimony, by appellant himself and by several witnesses for both sides, showed positively that a state of hostility existed between appellant and deceased, each against the other, which had existed for a considerable length of time up to the very day of the killing, and became worse after they had had a fist fight a few weeks before the killing, and that for a few months or weeks before the killing, appellant on every occasion when he and deceased were about to meet or come into the company of one another in the town where they lived and the killing occurred, went out of his way each time to avoid meeting deceased. Appellant offered to prove, upon cross-examination of one of the State's witnesses that he, the witness, had observed this conduct of the appellant on numerous occasions "because the witness was expecting trouble between appellant and deceased on such occasion." And further, that he, the witness, noted deceased's behavior on said occasions "such as indicated to his mind that deceased was seeking an opportunity to meet the appellant with an angry expression on his face." It seems by appellant's bill that these conclusions of the witness were what was objected to and sustained by the court. The action of the court was correct. Even if incidental to the objection of this testimony of the witness the court may have excluded that witness' testimony as to the conduct of appellant in avoiding deceased, it would be immaterial, because, as stated, such facts were, without controversy and clearly established by the positive testimony *Page 577 of appellant himself and of various other witnesses on both sides, without any contradiction or contest thereof by the State. In fact, it was conclusively established that appellant pursued that course of conduct.
The court's action in excluding the testimony of a witness, on the State's objection, as to what time the mail got into Glazier on the night trains and what time the people who got their mail at the postoffice usually went for it, was correct. This could not have been material in any way. All the acts of both appellant and deceased on the morning of the killing and what they said, where sought to be proved, were introduced and shown without any objection.
Appellant's bill complaining of the argument of the district attorney shows no error. We think the district attorney had a right in his argument to make the hypothetical inquiry that he did. (Edwards v. State, 75 Tex.Crim. Rep., 172 S.W. Rep., 227.) Appellant merely objected to the argument. He requested no charge in writing, or otherwise, that the jury should be instructed to disregard it.
After the jury had been out for some time, it seems they differed as to the testimony of one or two of the witnesses on a certain point, and in effect, as we understand this matter, as shown by all the proceedings with reference thereto, they wanted to have one of the witnesses testify on a point which he had not testified to on the trial. The court followed fully our statute on this subject, which is: "If the jury disagree as to the statement of any particular witness, they may, upon applying to the court, have such witness again brought upon the stand; and he shall be directed by the judge to detail his testimony to the particular point of disagreement, and no other, and he shall be further instructed to make his statement in the language used in his examination as nearly as he can" (art. 755, C.C.P.), and permitted the witness to tell what he had testified on the point inquired about, but refused to permit any witness at that time to testify on any point wherein he had not testified on the trial. We think the action of the court was correct, and that no reversible error is shown by his action in regard thereto. (See the decisions noted under said article both in the revised C.C.P. and under said article in Vernon's Ann. C.C.P.)
The court did not err in refusing to permit the witness Whitacre to testify what appellant said to him when he saw appellant turn off and come into the witness' store as to why he did so. This applies also to the same character of testimony sought from the witness Gaines. Such testimony was hearsay. As stated, appellant proved by himself and several witnesses — and no contest whatever was made thereof by the State — each and every act of his in avoiding the deceased when he was about to meet him. Becker v. State, recently decided, from Harris County, not yet reported; Giebel v. State, 28 Texas Crim. App., 151; Bradberry v. State, 22 Texas Crim. App., 273; Angus v. State, 29 Texas Crim. App., 52; Harrell v. State, 39 Tex.Crim. Rep.; *Page 578 Red v. State, 39 Tex.Crim. Rep.; Hardeman v. State,61 Tex. Crim. 111; Underhill on Cr. Ev. (2d ed.), sec. 119a.
Appellant sought to have his witness McBride testify that deceased, after the fist fight between appellant and deceased, but some time before the killing, told him that he, deceased, always carried a gun in his car. The State objected to this because it was not shown that appellant was apprised of this before the killing, the court at the time remarking: "I do not see the materiality." The testimony of appellant himself was to the effect that deceased did not go to his car on the occasion when he killed him for the purpose of getting a pistol, or for any other purpose. He started in that direction, but only went a short distance. Appellant knew that he had not on the occasion gotten a pistol from the car, or otherwise. Under the circumstances, said testimony was inadmissible, but even if it had been admissible, the excluding of it would have been immaterial, and presented no error.
Appellant introduced testimony showing that deceased and appellant's grown son had a fight the night before the killing at a church in the town and had the witnesses detail the whole affair. After this had been done, the State introduced Mrs. Milam, who testified over his objections what was done and said by appellant's son at the time which brought about and was the cause of the fight. This was a part of the same transaction, and clearly under the statute and decisions thereunder, was admissible. (Art. 811, C.C.P.) The jury could not have understood the occasion for the fight nor the particulars thereof without having the cause thereof stated to them. Appellant himself testified that his son had told him all about it the night before and the morning of the killing, and just before the killing he had had Rev. Mr. Beck to again tell him the particulars, and it was just after all these facts were known to him that he killed deceased.
The court gave a correct charge, submitting both murder and manslaughter to the jury. As appellant was convicted of manslaughter only and acquitted of murder, murder passed out of the case. In the charge on manslaughter, the court gave a full and correct charge thereon, to which appellant made, and makes, no objection.
He, however, asked several special charges on the subject of self-defense. It is unnecessary to copy these. None of them, except the one which the court did give, should have been given. None of his specially requested charges met the requirements as has been many times and uniformly held by this court. (Byrd v. State, 69 Tex.Crim. Rep.; Ryan v. State, 64 Tex. Crim. 628. ) But without regard to that, we have considered all of them.
It is always necessary in passing upon any objection to the court's charge, or those which were refused, to consider the whole charge of the court which was given, and if the whole charge on the subject presents every issue properly, then no error is committed.
On his claimed self-defense, the court in his main charge instructed the jury: *Page 579
"13. A reasonable apprehension of death or serious bodily injury will excuse a person in the use of all necessary force to protect his life or his person, and it is not necessary that there should be actual danger providing he acts upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such cases the party acting under such real or apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant, or apparent assailant.
"If from the evidence you believe that at the time the defendant, Thomas Waters, killed the deceased, Phil Milam, the said Phil Milam was making, or was about to make, an attack upon the defendant, Thomas Waters, and from the manner and character of such attack the defendant had a reasonable expectation or fear of death or serious bodily injury, and that acting under such reasonable expectation or fear the defendant shot and killed the deceased, then in such event you will find the defendant not guilty.
"14. In determining whether or not at the time the defendant shot the deceased, Phil Milam, he was in danger of losing his life or sustaining serious bodily injury, and also in determining whether or not from the facts and circumstances in the case that at the time he shot the deceased he believed that he was in danger of losing his life or sustaining serious bodily injury, and had a reasonable apprehension of such danger, you will view the transaction from the defendant's standpoint and from no other standpoint, and if you have a reasonable doubt as to such matters you will give the defendant the benefit of such doubt and say by your verdict not guilty.
"15. The defendant in a criminal case is presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt, and if after having heard all of the evidence as applied to the court's charge you have reasonable doubt of his guilt you will acquit him."
And in addition gave this charge requested by appellant in the very language in which he requested it: "If you find and believe from the evidence that the defendant, Thomas Waters, killed Phil Milam at the time and place alleged in the indictment, but you further believe that prior thereto said Phil Milam had made threats against the defendant to do him serious bodily harm or injury, and that at the time of the killing said Milam by some act then done manifested an intention to execute the threats so made, or do the defendant some serious bodily injury, or you believe that at the time of the killing said Milam had made or was making an unlawful attack upon the defendant, or had done, or was doing some act or acts which produced in the defendant's mind, as viewed from his standpoint, a reasonable apprehension of assault or death or serious bodily injury at the hands of Milam, and that he killed said Milam to protect himself from such danger, or apparent danger, then said killing was justifiable in self-defense, and *Page 580 if you so find or have reasonable doubt as to whether said killing was justifiable in self-defense you will find the defendant not guilty."
These charges submitted every issue raised by the testimony as to appellant's claimed self-defense. No others should have been given.
The judgment should be, and is, ordered affirmed.
Affirmed.
ON REHEARING. February 20, 1917.