Upon trial for the murder of T.D. Griffin appellant was convicted of manslaughter with a penalty of three years in the penitentiary.
There were only two eyewitnesses to the homicide, Baker, who testified for the State, and accused's wife who testified in his behalf. Accused did not take the stand. Deceased had been a witness a few days before the killing in a case against appellant in the Justice Court. Appellant was displeased with the evidence given by deceased, and the homicide was the culmination of a discussion between them over this matter. The State contended that accused provoked the difficulty by insulting language towards and an assault upon deceased with a stick, while the defense attempted to show that deceased was the aggressor throughout the trouble.
As combatting the defense the State, over objection, proved that two or three days prior to the killing deceased had received a severe injury to his leg and was able to get about only with difficulty. This condition was shown with all reasonable certainty to have been known *Page 86 to appellant, as deceased's condition was apparent on the day of the trial in Justice Court where appellant was present. We can see no error in the admission of this evidence. The fact that it was admitted before the facts attending the homicide were developed, under promise of the State to show later the connection and materiality thereof would not be erroneous where the promise was made good. Likewise, proof by the State that the wife of deceased was in California at the time of the trial was admissible to account for her absence as a witness regarding the physical condition of her husband.
Appellant's wife was placed upon the stand by him and gave evidence that she saw the difficulty, going into all the details, but upon direct examination denied hearing anything that was said. Upon cross-examination State's counsel asked her, "When was it that you heard him (Griffin) say it was time for him (appellant) to go down, or something like that?" Objection was urged that she being appellant's wife and not having been asked about that on direct examination the State should not go into it. She had testified that she did not hear any conversation between them, and we think this question was germane to the examination in chief. It was the contention of the State that when deceased first came to where appellant was he had said to appellant that it was time for him (appellant) to be going down to court. Especially is no error shown where the wife in reply to the question denied having heard such an expression. By no kind of construction could this be distorted into her giving evidence against accused.
After the court had prepared his charge embracing murder, manslaughter and self-defense the State requested and the court gave a charge in substance that if appellant used insulting words towards or made an assault upon deceased for the purpose of provoking a difficulty with him, and that such conduct was calculated to and did so provoke it, and that appellant intended thereby to do so, and thereby brought about the necessity to kill in his own defense, that he could not justify the killing, but could only reduce the grade to manslaughter. At appellant's request, and evidently in connection with the State's special charge, the court instructed the jury that although appellant may have provoked the difficulty by insults or an assault yet if appellant abandoned the difficulty and was retreating his right of self-defense would not be abridged. No objection was made to the State's special charge at the time it was given, and none would seem to be tenable. As we view the evidence it was perhaps more favorable to appellant than he was entitled to from the standpoint of the State. For the first time in the motion for new trial complaint is made of this special charge, and it is urged in the brief that the two charges (the substance of which are given above) were contradictory. We cannot so regard them. One was for the protection of the State, the other to *Page 87 safeguard appellant's rights, and both appear to be pertinent and called for by the evidence.
Having found no errors in the record, the judgment must be affirmed.
Affirmed.
ON REHEARING December 13, 1922.