Appellant was convicted of murder in the first degree, and his punishment assessed at confinement in the penitentiary for life.
The first bill of exceptions complains of the action of the court refusing to permit appellant's counsel to consult with the wife of defendant, who was tendered as a witness. The qualification of the judge to the bill shows that the wife had been in the town where the case was tried, for a week before the trial; that, before appellant tendered her as a witness, the court adjourned one evening at 6 o'clock, and did not convene until 8:30 the next morning. An inspection of the bill does not disclose any injury to appellant. The court allowed counsel five minutes to consult with this witness; and there is nothing to indicate that she failed to state anything in behalf of appellant that she had stated previously to appellant's counsel prior to going upon the witness stand. Matters of this character are always with the sound discretion of the court. Brown v. State, 3 Texas Crim. App., 313; Holt v. State, 9 Texas Crim. App., 571. In the absence of an abuse of discretion properly lodged with the trial court, his action will not be revised. *Page 256
Bill number 2 complains that the court erred in permitting the State to introduce the threat made Sunday before the homicide by appellant, to the effect that if deceased did not pay him Monday when he came, there would be trouble; that he (appellant) was dissatisfied with the settlement he had with deceased. The objection to this evidence is to the effect that the same was inadmissible because, as a part of the same conversation, witness stated that appellant contradicted himself, and said that the settlement he had with deceased was perfectly satisfactory; and furthermore, that the settlement was satisfactory was borne out by the dying declaration of the deceased and other evidence. These would not be tangible objections to the admissibility of the evidence, since it would merely go to the weight to be given to the same. Where appellant is on trial for a homicide, a declaration going to show malice would not be rendered inadmissible by a subsequent declaration of his in the same conversation going to show a lack of malice. The later statement might be introduced as a part of the same conversation to be considered by the jury in passing upon the question as to whether appellant in fact had malice towards the deceased; in other words, would merely go to the weight of the evidence, and not to its admissibility.
Complaint is urged in the third bill that the court erred in permitting the State to show that deceased expressed himself at any other time than that referred to in the second bill, that he had settled with deceased, was going to get his money, because he had deceased's mules in his possession, and they were good for his money. The objection is that the evidence showed no ill purpose on the part of appellant, personal or otherwise, and that it was irrelevant and immaterial. We have frequently held that the objection that testimony is irrelevant and immaterial is too general to be considered. Howard v. State (Texas Crim. App.), 57 S.W. Rep., 948. However, the testimony does indicate that appellant was not satisfied with the settlement, and was proposing to hold the mules of deceased as security for the balance due him. If the evidence, as insisted by appellant, showed no ill will on the part of appellant toward deceased, then it would certainly redound to appellant's benefit, and not injure him. On the other hand, if it shows that appellant was not satisfied with the settlement, it would be competent testimony on the issue of animus, however meager it may be, tending to establish that appellant did have express malice towards the deceased, or animus.
Bill number 4 complains that the court permitted the State to show, by the witness Maples, that defendant had stated to said witness that he (defendant) did not know whether the mill of deceased would run or not; that he and his family could use pistols and shotguns, and that they were all good marksmen. This occurred a short time prior to the homicide. The judge's qualification to the bill shows that defendant was then talking about the debt deceased owed him; that he was foreman of the mill, and had shut it down, and stated that deceased could not run it. This testimony clearly indicates, or at least was admissible *Page 257 as going to show, that appellant had ill will towards deceased, and intended to prevent, if he could, the running of the mill, by the use of pistols and shotguns, if necessary. It is always permissible to prove previous threats as independent evidence in homicide cases, and, if there is a qualification to the threat in any way, this is admissible; or, if one construction of the evidence would indicate a threat, and the other would not, the evidence would be admissible. The fact that the declaration of appellant under the circumstances may be susceptible of an innocent construction would not go to the admissibility of the testimony, but merely to its weight. Howard v. State, 23 Texas Crim. App., 265.
Complaint is made in the fifth bill of the argument of the district attorney. "While the district attorney was making his closing argument to the jury, he stated that the judge would have to charge them upon every phase of the case made by the testimony; that he would have to submit to them in his charge every issue raised by the testimony, however weak the testimony might be, upon the issue; that the court would charge them upon the law of manslaughter, and probably upon the law of self-defense. That if the testimony raised an issue, no matter how weak the testimony might be upon it, it became the duty of the court to submit that issue to the jury for their determination, and, if the court failed to do it, the higher court would reverse the case. That, in submitting the issue of manslaughter and self-defense, the judge did not intend thereby to convey the impression that he believed defendant was only guilty of manslaughter, or was justifiable; that he could not and would not express an opinion about them; that these questions were for the jury to determine from the evidence. The district attorney said: `I will illustrate in this way: You see this lead pencil in my hand. Now suppose it was a pistol, and that I had it here before you twelve jurors while I was arguing this case, and that you all saw me have it, and when I was indicted for having it here in the court room, and upon the trial you should all twelve jurors testify positively that I had it when I was arguing this case, and that you saw me have it, but if I should take the witness stand and swear that I was not before you arguing the case and did not have the pistol, but that I was at the time in Texarkana, Bowie County, Texas, — then the law would require the court to charge on the defense of an alibi, and if he failed to do so the higher court might reverse the case.'" To this argument and statement appellant objected, on the ground that the same was improper and injurious to defendant, and was calculated to prejudice defendant's defense in the case. We do not think there is anything improper in counsel's arguments. He merely stated propositions of law that have been established by this court since its organization. We have repeatedly held that it is the imperative duty of the court, under our statutes, to charge upon all the phases of the evidence presented, and that a failure to do so would operate a reversal of the case. It is furthermore true, *Page 258 as stated by the district attorney, that the court can not indicate his opinion as to whether any particular issue is or is not made out by the evidence. We commend, instead of censure, the character of argument pursued. It is proper and well that the jury should understand that the trial court must present all the law applicable to the facts, and leave the issues of fact to be applied by the jury to the charge of the court. It is proper that they should know this is their province. Jones v. State (Texas Crim. App.), 46 S.W. Rep., 933.
The only other question presented that we deem necessary to be reviewed is the following complaint in the motion for new trial: "The court erred in charging the law of murder in the first and second degree as set forth in his charge, and the law of manslaughter and self-defense in the terms stated in the charge, and in failing to justify in this case in defense of self and property or home." An inspection of the charge on murder in the first and second degrees and manslaughter shows that the same are correct presentations of the law applicable to the facts of this case; and the charge on self-defense also is correct. There is no evidence authorizing a charge on defense of property or home. Appellant in his testimony stated, "I shot deceased because I was afraid he was going to shoot me, and because of the insult to my wife." This is the only evidence that could possibly be construed to support the contention that a charge should have been given on the defense of property and home. The evidence shows that deceased had rented the house, occupying one room therein, to appellant and his wife, who kept house for him. However, appellant's counsel in brief and argument insist that the charge on manslaughter is incorrect in that it does not present all the law applicable to the facts. It will be noted in the exception in the motion for new trial he merely says, "The court erred in charging the law of manslaughter." This objection is too general to be considered by us. Quintana v. State, 29 Texas Crim. App., 403; Maxwell v. State, 31 Texas Crim. App., 119; Williams v. State, 22 Texas Crim. App., 497; Thompson v. State,32 Tex. Crim. 265. The objection that the court erred in the charge on manslaughter is in the nature of a general demurrer, and, if the charge were inherently vicious from a casual inspection, such general objection might be considered as sufficiently explicit. But this general objection will not raise matters dehors the record, so to speak; that is, if the charge on manslaughter, as far as given, is applicable to the facts, there is no error to be revised. Reverting to the charge on manslaughter, we find that the court charged the jury that if defendant did unlawfully and voluntarily shoot said Ed Lancaster with a pistol, etc., and "if you further believe from the evidence that at the time of such shooting defendant had been informed that said Ed Lancaster had addressed insulting words to defendant's wife, and that he killed him upon first meeting," etc., he would be guilty of manslaughter. Appellant's objection in his brief and argument to this charge is that the court should have gone further, and charged, under *Page 259 the facts, as to whether or not the statement relied upon as a defense by appellant, to wit, insulting language to his wife, was true; and have charged that defendant would be guilty only of manslaughter if he acted upon the statement of his wife about the insults, and killed deceased upon first meeting, whether or not deceased had in fact insulted his wife. In other words, appellant insists that the court should have charged the jury that if defendant was informed by his wife that deceased had slandered her, and if he killed deceased on first meeting, under sudden passion arising from an adequate cause, believing at the time he did so deceased had insulted his wife, he would be guilty only of manslaughter, notwithstanding the jury may believe from the evidence that deceased did not slander the wife of appellant. However, appellant does not make this objection to the charge by bill or in motion for new trial. So the charge as given is correct, and, it being a controverted question of fact under the evidence as to whether or not the insults were offered, it would have been proper for the court to have charged the jury upon this suggested phase of manslaughter, but, exception not being properly reserved, the same can not be reviewed.
No error appearing in the record authorizing a reversal, the judgment is affirmed.
Affirmed.
[Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]