The appellant was convicted in the district court of Shelby County of the offense of manslaughter, upon an indictment charging him with murdering one Lamar Blount, and his punishment assessed at confinement in the penitentiary for a term of five years.
Bill of exceptions No. 5, complains of the action of the trial court in permitting the State upon cross-examination to ask the appellant while upon the stand if he didn't have a certain conversation with one Will Polley relative to having a gun and that he wanted it, which the appellant denied any such conversation with said Polley about any gun, and the State introduced the witness Singleton, who testified that prior to the homicide, that he heard the defendant *Page 589 in a conversation with said Polley saying, "If you will get the gun I will buy it * * * boy, you are talking too loud, the church deacons are going to raise a racket about talking too loud." The objection being to such testimony that it was hearsay and was an attempt to impeach the defendant on an immaterial issue. We cannot agree with this contention. The record discloses that the homicide arose between the deceased and appellant over a pistol that the defendant had sold to one Matlock which the deceased had purchased from said Matlock and the defendant was seeking to recover said pistol from the deceased at the time of the homicide; it being the contention of the State and if the State's witnesses were to be believed by the jury, that the defendant was the aggressor in bringing on the difficulty in seeking to forcibly take from the deceased at the time the pistol in question. We believe that this evidence was admissible for the purpose of showing to the jury that the defendant was contemplating obtaining the possession of the pistol or tending to show that he was after the pistol in question, and there was no error upon the part of the court in admitting same.
In bills of exception No. 8 and 9, the appellant complains of the court's action in permitting the State upon cross-examination of the defendant's witness Garrett to ask him if he didn't state to the defendant before the killing "are you going to let that negro get away?" which was denied by said witness, and in permitting the State to prove by the witness Singleton that he did hear the said Garrett prior to the killing make such statements to the defendant, it being contended by the defendant that said testimony was prejudicial and was impeaching the witness on an immaterial matter.
Complaint is also made to the action of the court in permitting the State on cross-examination to ask said witness Garrett where he had his horse hitched on the night of the homicide, to which he replied it was close to the spot where the difficulty began, and then to the action of the court in permitting the State to prove by the State's witness Matlock that said witness Garrett had his horse hitched at another place and near the church, it being urged that said testimony of the State was prejudicial to the defendant as shown in said bills and that it was impeaching the witness on an immaterial issue; we cannot agree with either one of the contentions above urged for the reason that if the State's witnesses are to be relied upon in the case, and if the State's theory was correct, the defendant's witness Garrett was acting with the defendant all along and in effect was urging the difficulty that resulted in the homicide and was present during all of the entire controversy between the defendant and deceased and was taking a very active part therein. If this were true the State would certainly be entitled to introduce *Page 590 any fact or circumstance which would be of benefit to the jury in showing the attitude of the defendant's witness, and we fail to see any error in the action of the court in admitting this testimony.
In bill of exceptions No. 13, complaint is made that the court committed error in refusing to submit to the jury his special charge No. 1, as follows:
"I further charge you as a part of the law in this case, that the defendant has the right to follow and to continue to shoot as long as it appeared to him that there was danger."
The court in his general charge, charged the law fully of self defense embodying apparent and real danger, concluding that with the following statement:
"But the party assaulted may continue to shoot as long as it appears to him there is danger."
After a careful consideration of the evidence in the case and the court's charge thereon, we are of the opinion that the complaint made by appellant is not tenable and that the court fully charged the law of this case as raised by the evidence thereon. The record fails to disclose any issue raised in the case demanding a special charge of the kind requested by the appellant as above set out. There was no witness, including the defendant himself, that testified to any facts which raised that issue. In facts, the appellant himself testified after the first shot was fired by the deceased "I was not expecting any thing. We all broke and run; I was scared like the rest. As to how come me to go down the road after Lamar Blount, I will say that is the way my face was, if I had been turned back the other way, I suppose I would have run back the other way. Just as soon as I saw I was headed for Lamar Blount, I stopped; he had done turned and shot me then."
The above is the nearest to any statement from any witness tending to bring in question the point sought to be covered by said special charge, and it will be readily seen that the defendant did not contend that at the time he shot and killed the deceased, that the deceased was seeking to reach any point of vantage from which to shoot and kill him, and we are, therefore, of the opinion that the court was clearly right in not submitting this issue to the jury.
After a careful consideration of the entire record, we fail to observe any error committed upon the trial of this case that would warrant this court in reversing same, and said judgment of the trial court is therefore affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 591
ON MOTION FOR REHEARING.