Appellant was convicted in the District Court of Upshur County of murder, and his punishment fixed at five years in the penitentiary.
Deceased was a nephew of appellant, and was making his home at the time of the homicide with appellant's son, Oscar Green, at whose house the shooting took place.
The homicide occurred Sunday morning about 8:30 or 9 o'clock. A recital of the facts would be of no value except as illuminating our action in ruling upon the grounds presented by appellant for a reversal of his case.
Appellant asked a peremptory instruction of not guilty upon the ground that the evidence did not establish that the shot from the gun of appellant killed deceased. This was refused, and we think properly so. It is true that no one described the wounds on the body of deceased with any particularity, nor did anyone state in terms that deceased came to his death by gunshot wounds inflicted by appellant, but the evidence established conclusively that death was the result of such gunshot wounds. Without going into the testimony of the various eyewitnesses, we quote from the testimony of Miss Lewis who said, referring to the incidents immediately connected with the shooting, that appellant "throwed up his gun, that deceased ran and got a gun, and both fired almost if not exactly together, that deceased walked into the dining room and fell in there, that he `let into calling his niece, saying they had killed him,' that Oscar was shot in the right hip and George (deceased) in the lower bowels. . . . When the defendant shot him, George Green went into the dining room and fell, . . . that he let in to screaming, said they killed him, . . was standing out in the hall when Mr. Green shot him," etc. Many other things occur in the testimony of other witnesses similar to the above.
Appellant asked the following special charge: "Gentlemen of the jury at the request of the defendant I give you in charge as a part of the law of this case, the following instructions: That if the defendant on the occasion in question went down to the house of the deceased, George Green, for the purpose of having a friendly talk with him, or for the purpose of advising him to give up the six-shooter mentioned in the evidence and that when he arrived in front of the house, he inquired for deceased, George Green, and that about that time he saw George Green run from one room into the room where the gun was and saw the said deceased pick up the gun, and that the deceased was using said gun in a threatening manner that looked like he intended to shoot defendant or if it reasonably appeared to the defendant that the deceased was fixing to shoot the defendant and that the defendant then shot the deceased he would not be guilty and this you will view from the standpoint of the defendant as it appears to him at the time *Page 152 under all facts and circumstances and evidence and if you shall find that he so acted you will find the defendant not guilty or if you have the reasonable doubt as to whether or not the defendant so acted you will give him the benefit of such doubt and find him not guilty."
This was properly refused. Irrespective of appellant's purpose in going to the place where deceased lived, his own language and conduct after he arrived there, would necessarily enter into the question of his right to take the life of deceased; and might easily be such as to entirely deprive him of any right of self-defense, and might show mutual combat, and may have shown that deceased was justified in getting a gun and acting as if he intended to shoot appellant. The State witness Lewis said that when appellant saw deceased he threw up his gun before deceased made any effort to get a gun. Such testimony would clearly make inapplicable the propositions embraced in said special charge.
The court's charge on threats in connection with self-defense, was full and fair, and it was not error to refuse the special charge asked on this subject. In this connection, we observe that appellant's perfect right of self-defense having been given him in the charge of the trial court, and same having been in no way limited by reason of his going to the home of deceased armed with a shotgun, there was no necessity for charging the jury on the right of appellant to arm himself. Harrelson v. State,60 Tex. Crim. 539; Holmes v. State, 155 S.W. Rep. 205; Strickland v. State, 161 S.W. Rep. 110.
Complaint is made of the admission of testimony of Reuben White of the fact that on the day before the homicide appellant had a conversation with his son, at whose house the homicide occurred, and the statement was made, "You come over Sunday and we will beat hell out of him." This was objected to because too general, not being shown to have reference to deceased, and as being inflammatory and prejudicial. The bill of exceptions presenting this matter was approved by the trial court with the qualifying statement that the connection in which the language was used renders it admissible as shown by the statement of facts. The bill with this qualification was accepted by appellant, and might have been held by us to have precluded the necessity for further investigation, but we have looked to the statement of facts and find that same shows that when appellant went to see deceased on the Sunday morning of the homicide he apparently wished to compel him to produce a pistol belonging to a negro named Shorty. It is also shown that at some time recently before the homicide deceased had used language concerning appellant which angered him very much. It further appears that on the Saturday afternoon preceding the killing on Sunday morning, appellant testified that deceased came to his blacksmith shop and "they would not let him come into the shop." The threat complained of was supposed to have been made at said shop and on Saturday afternoon before the killing next morning. The witness who testified to said threat, *Page 153 said he heard appellant and his son talking about somebody, — they talked about a pistol, — about being mad at somebody, — and that the son said to appellant for him to come over to his house next day and they would beat hell out of him. The evidence further shows that no other man lived at said house where the killing occurred except Oscar Green and deceased. Appellant did go over the next morning, having borrowed a gun before going, and if the testimony be true, having threatened to go there to harm deceased. These facts do not bring the instant case within the rule that general threats, not shown to have been directed at the injured party, nor to include him, are not admissible; but rather bring it within the line of authorities holding threats admissible, even though no name be called, if it can be reasonably gathered that the injured party was meant or included in such threat. Hardy v. State, 31 Tex.Crim. Rep.; Williams v. State, 40 Tex.Crim. Rep.; Sebastian v. State,41 Tex. Crim. 251; Taylor v. State, 44 Tex.Crim. Rep..
Appellant asked a new trial because of newly discovered evidence, attaching affidavits of certain parties as to statements made by witnesses in the case, in seeming contradiction to their testimony upon the trial. Ordinarily new trials will be refused for newly discovered evidence admissible only for purposes of impeachment. Some of the witnesses attacked by said affidavits were defendant's own witnesses.
This disposes of all the contentions made by appellant upon the trial. All of the eyewitnesses to the homicide testified, two on behalf of the State, and three, including appellant, for the defense. It was in testimony by a witness having apparently no interest in the outcome of the trial, that on the morning of the homicide appellant came to his house and borrowed a shotgun and got a couple of shells loaded with No. 4 shot, telling witness that he wanted same for the purpose of killing a hawk. This witness lived about a mile from the home of appellant's son where the shooting occurred, and stated that about thirty minutes after appellant got the gun he heard the shooting. He also testified that a few days after the shooting he was passing the home of appellant and the latter called him in and asked him if he was mad with him because he got the gun and told witness that he got the gun to shoot the boy with, and that he knew if he told the truth as to why he wanted to get it, witness would not let him have it. Another witness testified that before the homicide appellant came by his house and told him that he was going to kill deceased that morning. We believe the facts justified the jury in arriving at the verdict rendered. The evidence was conflicting, appellant testifying that after going to his son's house and inquiring for deceased and being told he was not there, that he made some statement about purposing to go to Gilmer and report deceased for some stealing, and that he got on his horse and was about to start away and turned to speak to his son, and that he knew nothing that occurred until a number of days after when he recovered consciousness at his home. The evidence *Page 154 showed that two shots were fired almost simultaneously, one of them taking effect in the body of deceased and the other in the body of appellant. All these conflicts of evidence were before the jury and have been resolved against the accused.
Finding no error in the record the judgment will be affirmed.
Affirmed.
ON REHEARING. October 12, 1921.