The appellant was charged with murder in the District Court of Wood County, found guilty, and sentenced to the penitentiary for life.
1. A witness, Dave Hawkins, was permitted to testify: "I had a conversation with L.P. Adams (the deceased); he told me that Walter LaGrone (the defendant) had cursed him that morning; he said Walter was mad at him about something — he did not know what it was — unless Walter was jealous of deceased and Ziller Morris. L.P. Adams told me that defendant had told him (Adams) that he was going to kill him. Walter LaGrone (defendant) was just across the public road talking to Lincon Pigg. He was close enough to have heard it if he was listening. He was in about fifteen feet of us." Appellant objected to the testimony, as shown by the bill of exception, on the ground, "that it was a conversation between deceased and the witness, and the witness did not and could not testify that defendant heard it." The court approves the bill with this qualification: "From the testimony of the witness I was of the opinion that the conversation between deceased and witness could have been and was heard by defendant." In Hardy v. State, 31 Tex.Crim. Rep., it is held "that the court's qualification or explanation of the bill of exceptions will control the recitals in the bill insofar as such explanation modifies such recitals," and in Jones v. State, 33 Tex. Crim. 7, it is held that where the party accepts and files the bill, he is estopped to deny that it is incorrect. The testimony places the defendant in position where he could and probably did hear the statement, and it is a question for the jury to determine whether or not he heard it. In Holden v. State, 18 Texas Crim. App., 91, Judge White says, in passing on a similar objection: "In this case it is proven that the admission was made in the presence of defendant, and he was close enough to have heard it. . . . Under such state of case the evidence was admissible, and it may be *Page 174 inferred that he did hear it, and the evidence was admissible against him even though at the time he had not been charged with or prosecuted for complicity in the crime," citing 2 Wharton Ev. (2d ed.), sec. 1136. The court gave the special charge requested by defendant on this matter, that even though the jury believed from the evidence that defendant threatened the life of deceased at the forks of the road, still defendant had the right to defend himself if he was attacked by deceased with an axe.
2. Objection was also made to admitting the testimony of S.H. Hindman, who testified that on the morning after the killing he had a talk with defendant, who was working for him, and in that conversation he had said to defendant that he (the witness) had been told that defendant had been "squabbling with some of the boys on the road the day before," and that he told him he must not squabble with the other men, when defendant answered that he had not had any trouble. The judge in approving this bill states that the evidence showed the defendant, although he had promised to work that day, immediately fled the country after this conversation. Up to the time defendant took the stand in his own behalf, there was no positive proof that he had killed deceased the day before. The State was endeavoring to make a case against him by circumstantial evidence, and we think the testimony admissible, in the light of all the testimony. Ballew v. State,36 Tex. 98; Langford v. State, 17 Texas Crim. App., 445, and cases cited.
3. The appellant reserved an exception to the remarks of the district attorney when he said that defendant was a criminal and a murderer, and requested a special instruction, which was given by the court, that the jury "would not consider the remarks of the district attorney that defendant is a criminal and a murderer, because the same was improper." The remarks may have been the deductions of the attorney from the evidence. Certainly, there was no error of which the appellant could complain when the court gave the special instruction at his request. Barkman v. State, 52 S.W. Rep., 69. In the case of Thomas v. State,33 Tex. Crim. 608, Judge Hurt held that under the facts of that case it was not improper for the district attorney to state that "the defendant murdered F. while he was asleep in bed, and after brutally killing him with an axe the defendant robbed him of his money, his clothes, his horse and buggy, and he should suffer the death penalty." In this, if the jury believed the State's theory, the defendant ought not to complain of the punishment inflicted.
4. Complaint is made that the court's charge in presenting the law of self-defense restricted the right of defendant to kill deceased to the very time the deceased was assaulting him, and did not present the view that the circumstances must be viewed from defendant's standpoint. If we should look alone to the first section of paragraph 22 of the charge, the criticism might seem to be well taken, *Page 175 but when we read the entire paragraph presenting the law of self-defense, the court in the third section of said paragraph tells the jury that if they find beyond a reasonable doubt that defendant killed deceased, "it is not essential that there should have been any actual or real danger to defendant's life or person. If deceased made an unlawful attack upon defendant or did any act or made any demonstration which produced in the mind of defendant, viewing all the facts from defendant's standpoint, a reasonable expectation or fear of death or some serious bodily injury, and if defendant killed deceased under such reasonable expectation or fear arising from such acts or demonstrations, he was justified in so doing, and in law it would make no difference whether the danger to defendant's life was real or imaginary, if it had the appearance to him of being real, viewed from his standpoint." Taking the evidence into consideration, we think the court presented the law on this question as favorably to defendant as he could ask, and if as suggested by defendant the charge is more favorable than the facts justified, defendant can not complain. Green v. State, 32 Tex.Crim. Rep..
5. The above are all the grounds presented in appellant's brief, but in looking into the record we find other grounds stated in the motion for a new trial. We have carefully considered all of them, and do not think the court's charge subject to the criticisms contained in the motion. The court fairly presented the law applicable to murder in the first and second degree, manslaughter, and self-defense, the jury returning a verdict of murder in the first degree, and the punishment at life imprisonment. There are no bills of exception in the record upon which to predicate the assignments of error contained in first, second, fourth, fifth, seventh, eighth, ninth, tenth and eleventh grounds of the motion for the new trial, and this court can not review the action of the court in admitting the testimony. There is nothing in the record to suggest that witnesses Lee Hall and Dave Hawkins were accomplices of defendant in the commission of the offense, and the court did not err in failing to charge on accomplice testimony.
6. In this case the statement of facts was copied in the transcript. The Assistant Attorney-General filed a motion to strike out the statement of facts. We granted a writ of certiorari requiring the clerk to send up the original statement of facts in this case, but we want to call the attention of attorneys to the fact that the law now requires the statement of facts to be filed in duplicate in felony cases, and the original to be sent with the papers to this court. We do not desire that anyone be deprived of his right of appeal, but we must insist upon a compliance with the law.
Finding no error in the record the judgment is affirmed.
Affirmed.
[Rehearing denied March 8, 1911. — Reporter.] *Page 176