Appellant strongly urges that we erred in not upholding his contention appearing in bill of exceptions No. 6. In disposing of the preceding bill we inadvertently *Page 625 coupled bill of exceptions No. 6 with No. 5 in the statement in our opinion that "as qualified bills of exception 5 and 6 show no error." Bill of exceptions No. 6 does not appear to have been qualified. Said bill sets out a page and a half of questions and answers propounded to a witness by the state's attorney and certified as being presented in the form above referred to because deemed necessary to a fair presentation of the proceedings. The objection made by appellant appears in the bill as follows: "To each of which questions the defendant objected through his counsel because the witness was a state witness, and that the questions were leading." Mr. Branch cites many cases on page 90 of his Annotated P. C. supporting the proposition that a bill of exceptions complaining of the asking of leading questions improperly will not be held reversible error unless there be a showing of prejudice thereby. Nothing in the instant bill shows the antecedents or the connecting facts surrounding the questions asked. What was said by the court in Carter v. State, 59 Tex.Crim. Rep., is so apt and applicable to the situation under discussion that we quote same as follows:
"There being so many exceptions to the rule which forbids asking leading questions, before we would feel authorized to reverse because the court below permitted leading questions, we would have to be satisfied from the bill that the leading question did not fall within any of the exceptions that authorized leading questions. Questions that assume unproved facts are leading. However, it is not a prejudicial error to permit leading questions where they relate to acts not controverted, or where the point sought to be established is already proven and in these questions the fact established may be recapitulated. See 8 Encyclopedia of Evidence, p. 153. Also leading questions may be put to hostile witnesses unwilling to give evidence. They are also permissible to refresh the memory of witnesses when the purpose of justice requires such a course to be taken. Also a leading question is permissible to arrive at facts when modesty or delicacy prevents a full answer to a general interrogatory. Also such questions are proper where the witness is confused or agitated. They are also permissible when they are asked of an ignorant person where he is slow to understand or his vocabulary is limited. They are also permissible to be put to children. They are also permissible and are not objectionable where the witness has given an ambiguous answer, and the party may inquire by leading questions as to any fact or circumstance tending to enable him to explain more clearly or certainly. Such questions are sometimes allowed for the purpose of bringing out details surrounding *Page 626 a main fact already testified to. See Sec. 1105, Code of Criminal Procedure, and authorities there cited. Besides, this precise question was before us in the case of Snodgrass v. State, 36 Tex.Crim. Rep.[36 Tex. Crim. 207], and it was there held that the prosecutrix could be asked: 'Would you have yielded to the sexual embraces of defendant had it not been on account of his promise of marriage?' In view of the fact that discretion is left to the trial courts, in some cases, to permit the asking of leading questions, we think the proper rule of practice would be for the bill of exceptions, taken to the leading questions, to affirmatively show that the leading questions did not fall under one of the exceptions to the general rule. The bill in this case fails to state at what time of the proceedings this question was asked, under what circumstances it was asked, whether the witness' memory was bad or not, whether her recollection as to past events was treacherous, whether she gave her testimony in a halting manner, whether she was an unwilling witness, or whether the fact of her being a girl of twenty years of age and of modest demeanor caused her to be embarrassed upon the witness stand or not. Before we would be authorized to reverse a case upon this ground the bill should affirmatively exclude any idea that under the peculiar circumstances of the particular case, the court was justified in permitting the state to ask leading questions."
The only thing appearing in the instant bill in reference to the attitude of the witness or the circumstances suggesting that it was wrong for the court to permit questions in form as same appear in the bill, is found in the statement that the witness was "not an adverse, swift or unwilling witness." Mention of these three exceptions to the general rule forbidding leading questions in nowise includes all those instances in which same may be permitted under some one or more of the many other reasons which may justify the court's action. As said by us in Moore v. State, 37 Tex.Crim. Rep., speaking on this same point: "It does not appear that the discretion of the trial judge was abused, or that any injury resulted to the appellant." The burden being on the accused to show affirmatively in his bill that the learned trial judge was not justified in permitting such questions, and it plainly appearing that appellant has not discharged that burden, the bill shows no error. What we have just said applies in part to appellant's contention as set out in bill of exceptions No. 15. However, this bill also presents another question. Following an objection made by appellant's counsel that the state was seeking to impeach its own witness, the court said: "He is not his witness, he is your witness." Appellant urges that *Page 627 this is in violation of Art. 707, 1925 Cow. C. P. (old Art. 787 Cow. C. P.), and cites Gribble v. State, 210 S.W. Rep. 215. The remark of the court there condemned was a direct comment on the lack of weight of certain testimony admitted, and was plainly violative of the statute which forbids the judge to "discuss or comment on the weight of the same or its bearing in the case, * * * nor shall he * * * make any remark calculated to convey to the jury his opinion of the case." In the language of this court in Wilson v. State, 17 Texas Crim. App. 535: "We do not understand the remark as a comment upon or disparagement of any evidence which defendant has introduced. If it could fairly and legitimately be so considered, then we would not hesitate to say that it was not only irregular, but highly improper and illegal." In the instant matter the statement of the court amounted to no more than the announcement of his ruling on the objection made. Appellant said he objected to the state asking certain questions of its own witness. The court ruled that the witness was not the state's witness but was appellant's witness, and stated his ruling in the language complained of. This was no comment on or discussion of the evidence, nor was it a remark calculated to convey to the jury the court's opinion of the case.
The state's attorney in his argument referred to appellant as "a cold-blooded murderer." Appellant excepted to this and asked the court to instruct the jury not to consider it, which request was refused. The attorney did not state the above as his private opinion. The language used by the attorney in Thomas v. State, 33 Texas. Crim. Rep. 607, was that the defendant murdered Farley while asleep and after brutally killing him, he robbed him, etc. Also the attorney said: "The defendant has committed a brutal murder." This court refused to reverse for this language. In the Boxley case, cited in our original opinion, the killing was referred to as "a cold-blooded assassination," which was held not reversible. It not appearing that the argument complained of is an expression of some facts dehors the record, or that it represents the personal opinion of counsel, or that it is mere personal abuse, the question usually becomes one largely referable to the facts before the court who hears the testimony and is in a position to know whether same justifies the statements made. Nothing in this bill of exceptions in any wise informs us that the facts failed to justify the conclusion that appellant was a cold-blooded murderer. By his refusal to give the requested instruction to disregard such argument, the learned *Page 628 trial judge indicates his belief that such a statement reflected a fair inference from the facts.
George Melton swore on this trial that shortly before this homicide he had up some cattle of deceased's which had gotten into his field; that appellant and deceased came to his place, and appellant introduced deceased to witness, and that deceased asked witness what the damages were, and upon being told deceased said, "If Mr. Marshall would settle half as reasonable we would make a settlement all right." Melton also testified that Marshall was standing there when this conversation took place. The only objection to this testimony, as appears from the qualifications of the learned trial judge to bill of exceptions No. 12, is that it was "prejudicial." We have often held an exception of this kind too indefinite to bring the matters complained of before this court for review. Venn v. State, 210 S.W. Rep. 537; Mauney v. State, 210 S.W. Rep. 961.
Appellant renews his complaint at the refusal of a requested charge submitting the theory of a killing in defense of property, asserting that he had the cattle of deceased legally in his possession and that when he killed deceased the latter was in the act of unlawfully taking or attempting to take from appellant's possession said cattle. We have again reviewed the facts in the light of appellant's motion and are confirmed in what we said about this contention in the original opinion. Appellant expressly disclaimed that the killing was caused by any attempt to take the cattle on the part of deceased. He repeatedly affirmed that deceased, after cutting loose the cattle which were tied with ropes, made a threat and started toward him, appellant, that they both went up the bank together, or nearly so, and that when they got to the top of the bank he shot deceased, believing his own life was in danger. We need cite no authorities holding that it was not error to submit the law of an issue which is not raised by the testimony.
Believing the case was correctly disposed of upon original consideration, the motion for rehearing will be overruled.
Overruled.