Appellant was indicted, charged with the murder of Sebastian Collins. He was convicted of manslaughter, from which judgment he has appealed.
It appears from the record the deceased was intimate with the wife of defendant, whether criminally so or not is not disclosed by the record, but the intimacy had caused the separation of defendant and his wife, defendant believing the relations were improper. For some time before the killing the defendant and deceased were on unfriendly terms. Defendant and two or three witnesses testify that deceased had made threats, and defendant testifies that he thought deceased was attempting to carry the threats into execution when he shot and killed him. The witnesses for the State testify there was to be a lodge meeting at the Temple building that night. Deceased said to a witness he thought he was going to apply for membership, when witness replied he had no application. Deceased remarked he would get an application, and started towards the stairway, when the shooting began. Deceased had no weapon, but had some papers in his hand.
In his first bill of exceptions appellant objects to this witness being permitted to detail this conversation with deceased, as it was not shown that defendant heard it. The witness says in answer to the question: "How long before he made that remark that `if that was all he would go upstairs and get an application blank,' before the shooting began? `Just the time it would take him to walk that distance from where he was standing, it was less than a half minute.'" We think the statement was admissible as res gestae. The scene as it occurred should be presented to the jury as near as possible, both from the standpoint of the State and the defendant, that the jury might be enabled to draw proper deductions when all the testimony has been adduced. Merritt v. State, 39 Tex.Crim. Rep.; Greenl. on Ev., sec. 198; Underhill on Ev., sec. 93.
While the witness James Guinn was being cross-examined by appellant's counsel, in answer to the question: "You had known for five months of the difference between defendant and deceased," the witness answered: "I won't say a difference between them — I knew that Renn was mistreating his wife, and she told it, and that night *Page 642 he and his wife was out to my house and I found out that there was a difference and that Renn was accusing Collins of his wife," to which answer appellant objected, because it was not responsive to the question. The court excluded the answer, when appellant's counsel again questioned witness about how long he had known of the difference between defendant and deceased, when the witness said: "I can not answer that without telling him ___" when he was stopped by the court. The State's counsel insisted that the witness should be permitted to answer the question in his own way, while defendant insisted that he only wanted a direct answer, the court remarking during the colloquy: "I think the witness is trying to do the best he can," to which remark the defendant objected and reserved a bill of exceptions, when the court instructed the jury: "You will not consider that remark of the court. It was probably improper for the court to say that, but the idea of the court was different from what Judge Parker thinks it was. You need not consider any remark whatever made by the court with reference to this question." While under article 767 of the Code of Criminal Procedure it is improper for the court to comment upon testimony, yet this court has frequently held that such remark must be calculated to injure the defendant, to be ground for reversal of the case. (McGee v. State,37 Tex. Crim. 668; Clemmons v. State, 39 Tex.Crim. Rep.; Rodriguez v. State, 23 Texas Crim. App., 507.) The remark we do not think resulted in any injury to the appellant, and especially so when they were at once instructed not to consider it.
State's counsel acted improperly in asking one of the defendant's witnesses if he had not been arrested for whipping his wife, if he had not been arrested for adultery, and if he had not been arrested for committing an aggravated assault on his wife. The court sustained the objections of defendant to each of these questions, and we are at a loss to know why counsel for the State will insist on asking questions of this character. However, as the court promptly sustained the objections, the question arises, was it such error as would be hurtful to defendant? For as said by Judge Davidson in Fitzpatrick v. State, 37 Tex. Crim. 20 (in which case the defendant was compelled to answer that he had been convicted of an assault and fined) "that notwithstanding this impeaching testimony should not have been admitted, was it of a character to injure or impair the rights of appellant?" and under the record in that case it was held harmless error. It is not every slight error that should call for a reversal of a case; it is only such errors as might and probably did work injury to the defendant. This witness did not claim to have seen the difficulty, and was not a witness to defendant's plea of self-defense, and inasmuch as the defendant was only found guilty of manslaughter, we do not think the error was such that the case should be reversed. However, such practice should not be indulged *Page 643 in, and if from the whole record, even though the questions are not required to be answered, it appears that the jury was probably influenced by such improper conduct, we would reverse and remand for another trial.
The appellant having taken the stand, testified in his own behalf, there was no error in permitting the State to introduce his evidence at the habeas corpus trial in rebuttal for the purpose of impeachment. Collins v. State, 39 Tex. Crim. 441; Preston v. State, 41 Tex.Crim. Rep..
Bills of exception Nos. 5, 6, 7, 8, 9 and 11 all relate to the impeachment of the defendant's witness Will Vaughn. Vaughn testified for the defendant that deceased Collins actually carried a pistol and often left it at his barbershop, and had left it there the morning of the day of the killing. That late in the afternoon deceased came to the shop and got the pistol. Before leaving with it he had asked witness for oil to clean his pistol. He let him have it, and deceased took the pistol to pieces and cleaned and oiled it, when the witness says the following conversation took place: "During the time that he was oiling the gun I asked him his object for oiling up. `Old boy, you kind of fixing up a little, aren't you?' and he says, `Yes, I am expecting to use it.' I says, `You think you will go out shooting a target practice?' He says, `No, I don't.' He says, `Renn has said something to me I don't like and I am going to whip him tonight or kill him.' I says, `Collins, the very idea, you talk that way, I am ashamed of you, knowing how close you are, even to have to talk like you would even do a thing like that — would you infringe on my feelings, me a friend like I am?' He says, `That doesn't matter, my mind is ready composed, and I will not be deposed.'" The witness testified that Ruby Morrow was working for him and was present when this conversation took place with deceased. That he told defendant Renn about this conversation the same evening, and only a short time before the shooting. On cross-examination he was asked if he had testified that the name of the girl who was there was Ruby Morrow, and he answered, "Yes, I said that was the girl," but he added that he had six or eight girls there during the year. He was also asked if on the night of the killing and a short time thereafter he, witness, had not told Nick Lightfoot that "Renn had killed Collins, and that Renn (defendant) was in his barbershop that evening and had told him (Vaughn) that he was going to kill Collins (deceased) that night," which statement witness denied. He was also asked that subsequent to this time, if in the presence of Mr. Wilkinson and Ed Loving, if he did not deny making the statement to Lightfoot, and at said time say: "He did not know anything about the case at all," which statement was denied by the witness. He was also asked on cross-examination if the following conversation did not take place between witness and Renn in the presence of Adam Sims: If a short time before the killing Ellis Renn *Page 644 (defendant) did not walk into his, Vaughn's, barbershop and say: "I have made up my mind to do it; I have just got to do it," and witness Vaughn replied to Renn, "Well, you can have my last dollar," all of which was denied by the witness. Again, on cross-examination he was asked if in the presence of the said witness he did remark when the shooting was heard, "I guess that is Renn now." In rebuttal the State was permitted to prove by E.H. Morrow that he was the father of Ruby Morrow; that she was dead, but at the time Renn killed Collins she was not in Vaughn's shop in Fort Worth, but was in McGregor, Texas, teaching music, and proved by Nick Lightfoot that Vaughn, on the night of the killing, had told him that "Renn had killed Collins, and Renn had told him, Vaughn, that he was going to kill Collins that night," and by Sims that he was present and heard Renn (defendant) tell witness Vaughn, "I have made up my mind to do it; I have just got to do it," and Vaughn said to him, "Well, you can have my last dollar," and at the time of the shooting remarked, "I guess that is Renn now;" and by the witness Lightfoot, that when he asked Vaughn subsequently in the presence of Wilkinson and others, if he had not told Lightfoot, on the night of the killing, Renn had said to Vaughn he was going to kill Collins, he denied knowing anything about the case at all.
All of this rebuttal testimony was objected to and proper bills of exception reserved. To properly understand the ruling of the court it must be remembered, as hereinbefore stated, that the witness Vaughn had testified deceased Collins had come and got his pistol just before the killing, and said he was going to kill defendant Renn; and he had so informed Renn. Witness Sims testified in rebuttal that he worked in the shop with Vaughn, and knew Collins, the deceased. That deceased never came in the Vaughn shop, and had not been in there that day, and had left no pistol there, and did not come in there and get a pistol, but the one who did come in was defendant Renn, who said: "I have made up my mind to do it — I have got to do it." Certainly the statement attributed to defendant was admissible.
There was a sharp conflict in the testimony between witness Vaughn and witness Sims on who it was that came in the shop and made the remarks attributed to defendant by Sims, and to deceased by Vaughn. When witness Vaughn said a dead person had heard deceased make the remark, it was permissible to show she was not in Fort Worth, but in a distant town. It was permissible under all the authorities to show that a witness for a defendant, for the purpose of impeachment of the witness, on the night of the killing said defendant had told him he was going to kill deceased, when on the trial he says it was deceased who told him he was going to kill defendant.
As to the remark, "I guess that is Renn now," if it was an isolated statement it might not perhaps be admissible, but when taken *Page 645 in connection with all the testimony, the bias of the witness in favor of defendant, we think it properly admitted; at least no such error is presented as should cause a reversal of the case, when the record shows that defendant was permitted to introduce impeaching testimony as to the witness Sims. In addition, the court instructed the jury that they could not consider this statement of Sims, or the testimony of Morrow, Loving and Lightfoot except in so far as it might affect, if they believed it did affect, the credibility of the witness Vaughn, and further instructed them to consider it for no other purpose. McAnear v. State, 43 Tex.Crim. Rep.; Ryan v. State, 49 S.W. Rep., 599; Bean v. State, 51 S.W. Rep., 946; Webb v. State,39 Tex. Crim. 534, 55 S.W. Rep., 493; Landers v. State,39 Tex. Crim. 671, 63 S.W. Rep., 557; Shaffer v. State, 65 S.W. Rep., 1072; Locking v. State, 75 S.W. Rep., 305; Jenkins v. State, 45 Tex.Crim. Rep., 75 S.W. 312. In Am. Eng. Ency. of Law, vol. 30, p. 1102, the rule is stated to be: "Disparaging evidence of matters otherwise collateral may be received when it tends to show the temper, disposition or conduct of the witness in relation to the cause or parties, and not only is this evidence admissible on cross-examination of the witness, but other witnesses may be questioned by the opposite party in relation thereto," citing authorities.
In another bill of exceptions appellant complains that the court excluded the petition for divorce filed by the wife of appellant. The bill is incomplete in that neither the petition nor any allegation in the petition is copied in the bill, but where the bill alleges "said allegation being as follows," is followed by blank lines. In addition, his wife was living at the time this case was tried, and in this connection the court did not err in refusing to give the following special instructions:
"You are instructed that the argument of O.S. Lattimore closing for the State, to the effect that defendant did not put his wife on the witness stand, that the defendant had the right to put her on the stand, but the State could not, and yet the defendant failed to put her on the stand to corroborate him in his defense, was improper, and you will not consider the same for any purpose whatever."
It is true the bill shows that appellant and his wife were not living together at the time of the trial, but in the bill there is no statement or allegation that would show she would not testify truthfully, or that appellant had sought her as a witness and she had declined to talk with him, or that she was living with those unfriendly to appellant. Eggleston v. State,59 Tex. Crim. 542, 128 S.W. Rep., 1105.
In the eleventh ground of his motion for a new trial appellant complains of the following paragraph of the court's charge: "In this connection you are instructed that one who is unlawfully attacked is not bound to retreat in order to avoid the necessity of killing *Page 646 his assailant, but has the right to stand his ground and even to advance on his adversary, and continue to act in self-defense until the danger or apparent danger is past, and to repel the unlawful attack of his assailant with whatever force may reasonably appear to him at the time to be necessary; but when it appears to defendant that such danger or apparent danger, if any, ceases, then such right ceased."
Appellant says (1): "It is not applied to, nor limited by the facts in evidence in this case; (2) it is but the statement of an abstract principle, instead of being put in a concrete form and explaining the defendant's rights in this particular case; (3) this charge tells the jury that the `defendant has the right to stand his ground and even to advance on his adversary;' (4) said charge tells the jury that defendant has a right to continue to act in his self-defense, until the danger or apparent danger is past."
In his nineteenth ground appellant complains of the failure of the court to give the following special charge requested by defendant: "You are further charged at the request of defendant that a person unlawfully assailed, not only need not retreat to avoid the necessity of killing his adversary, but has the right to stand his ground and to even pursue his adversary until he finds himself out of danger or apparent danger."
It will be seen that the court could not have erred as complained of in both the eleventh and nineteenth grounds of the motion. The court gave in the main charge in nearly the exact language the law as requested in the special charge, and while we think there was no error in the charge as given, yet if error there be, the appellant invited the court to give in charge this principle of law and he can not now be heard to complain.
In this case the jury by their verdict find all the issues of fact in favor of defendant except that it reasonably appeared to him his life was in danger. The State insisted that it was a case of murder, while it was defendant's contention that it could not be more than manslaughter by reason of the circumstances antecedent to the killing, threats, etc. The appellant testified to conduct on the part of deceased which he says led him to believe that deceased was then and there about to carry the threats into execution. The witnesses for the State, and some of the witnesses for appellant, testify deceased had no weapon. The eyewitnesses testify to no conduct on the part of deceased which would justify appellant in killing Collins.
The issue of the right to defend against danger as it appeared to appellant, viewed from his standpoint, was fairly and correctly given in the charge, and upon this phase of the case the record presents no error, and as the jury found the other issues in favor of appellant, no error harmful to appellant was committed in the trial of the case.
The judgment is affirmed.
Affirmed. *Page 647