The offense is murder. The punishment assessed is confinement in the State penitentiary for a term of thirty years.
This is the second appeal of this case. The opinion delivered by this court on the first appeal is reported in 140 Tex. Crim. 202; 143 S.W.2d 1036.
The evidence in this case is not materially different from that adduced upon the former trial. It was the theory of the State, finding support in the evidence, that the appellant, with malice aforethought, killed Rufus Johnson. The defendant's theory was that he shot and killed the deceased in self-defense. A more detailed statement of the facts is deemed unnecessary in making the proper disposition of the questions presented by this appeal.
The first question presented by the record relates to the court's action in changing the venue of the case from San Augustine County (the county in which the offense was committed) to Jasper County, which is adjacent to said county. It appears from the record that the first trial, which resulted in the appellant's conviction, was had in San Augustine County, *Page 370 but that after the judgment of conviction was reversed and the cause remanded for another trial, appellant filed a verified motion for a change of venue in which he set up the statutory grounds. The State filed controverting affidavits and claimed that the same conditions existed in Sabine and Shelby Counties which existed in San Augustine County; that on the trial of this case in the latter county, many people from Sabine and Shelby Counties attended the trial, which continued in progress for four or five days; that newspapers, which were circulated in the last-named counties carried extensive reports of the trial of the case. The court heard evidence relative to the matter and at the close thereof decided that a fair and impartial trial both alike to the defendant and the State could not be obtained in either Sabine or Shelby County and changed the venue to Jasper County. It seems from the evidence that the court houses of Sabine and Shelby Counties are just a little nearer to the court house of San Augustine County than that of Jasper County, but the road from San Augustine to the latter place is better than to the court houses of Sabine and Shelby Counties. However, all of the counties mentioned are in the same judicial district. Of course, under the statute, Art. 565, Vernon's Ann. C. C. P., if the same conditions had not existed in Sabine and Shelby Counties that existed in San Augustine County, the court would have been required, upon the granting of the appellant's motion, to have changed the venue to Sabine County, as the court house of that county is nearest to the court house of San Augustine County. The court decided the question adversely to the appellant's contention and, in our opinion, the evidence is sufficient to sustain the court's conclusion. This court would not be authorized to disturb his judgment unless it is made to appear that the court had abused or arbitrarily exercised his judicial discretion. See Branch's Ann. Tex. P. C., Sec. 299, and authorities there cited.
Appellant next complains of the introduction in evidence by the State, on the motion for a change of venue, of certain affidavits. It seems that on a motion for a change of venue such affidavits are admissible under the authority of Labbaite v. State, 6 Tex.Crim. R.. Appellant also objected to the asking of some leading questions. These matters were before the court in the absence of the jury and in passing upon them, the presumption prevails that the court considered only such evidence as was legally admissible.
In the case of Mondragon v. State, 33 Tex. 480, (483), Judge Lindsay, speaking for the Supreme Court, said: *Page 371
"When the change was made to Comal county, the defendant offered to prove that the court house of Medina County was nearer to the court house of Bexar County than that of Comal. But the court was otherwise satisfied, (in what manner, this court think, is not material, unless it should appear from the record that the cause of the defendant was thereby actually and positively prejudiced) that there was 'some valid objection' to the county of Medina."
By Bills of Exception Nos. 1 to 9, both inclusive, appellant complains of the reproduction of the testimony given by John Horton, Jr., at a former trial of this case and its introduction in evidence upon this trial. Appellant objected to its introduction upon the ground that a proper predicate had not been laid as a basis therefor. We are not in accord with his contention. It was shown by John Horton, Sr., that his son (John Horton, Jr.) lived with him up to the month of October or November, 1940; that John Horton, Jr., was commonly called "Son"; that since the first trial of this case, John Horton, Jr., had moved to San Diego, California. We quote from the testimony of John Horton, Sr., as follows:
"I know John Horton, Jr., is in California, because I get letters from him all the time. Those letters are postmarked 'San Diego, California.' This is one of the letters my wife and I received from John Horton, Jr., and his wife. The postmark on that letter is 'San Diego, California' I had a letter from John Horton, Jr., last Saturday a week ago; it was postmarked the same place. I read this letter here; that is a letter I received from my son, John Horton, Jr., and his wife from San Diego, California, dated January 13, 1940. (1941)"
The District Attorney testified that he received a letter purporting to have been written by John Horton, Jr., on January 4, 1941, at San Diego, California. Thereupon, John Horton, Sr., was recalled to the witness stand and testified that the letter, which reads in words and figures as follows, was in the handwriting of his son, John Horton, Jr.:
"San Diego, Calif. "January 4, 1941.
"Mr. Joe J. Fisher, "San Augustine, Tex. "Dear Mr. Fisher:
"I received your letter and after consideration I decided it *Page 372 would be foolish for me to come back there to be a witness in the L. C. Conn case. If I did so I would loose my job. Therefore I think it will be wise for me to not come."
"Sincerely yours, "Son Horton."
It is our opinion that when it was shown that this letter was in the handwriting of the absent witness and that it was dated and postmarked "San Diego, California," a sufficient predicate was laid upon which the reproduced testimony could be introduced. This letter shows that John Horton, Jr., had received a letter from Joe J. Fisher to which he replied that he had decided it would be foolish for him to come back to be a witness in the L. C. Conn case; that if he did so, he would lose his job; that therefore it would be wise for him not to come. That the witness was in the State of California seems to be shown by the testimony. That he did not go there merely on a visit for a short period of time is to be inferred from the fact that he had a job which he desired to retain; that if he came back here he would probably lose it. This language fairly indicates that he had made his home in the State of California, had obtained employment and desired to remain there. In our opinion, the language is not subject to any other construction. When John Horton, Sr., testified: "This is one of the letters my wife and I received from John Horton, Jr., and his wife; the postmark on that letter is San Diego, California; I had a letter from John Horton, Jr., last Saturday a week ago; it was postmarked the same place," the witness evidently had the letter before him when he was testifying. The contents of the letter, perhaps, were not relevant and admissible, but the fact that he had received a letter from his son "last Saturday a week ago" and that it was postmarked "San Diego, California" was admissible.
Appellant has cited us to the case of Gamboa v. State,69 Tex. Crim. 635; White v. State, 202 S.W. 737, and several others. We have examined each of these cases with great care and think they are all distinguishable from the instant case upon the facts. It is obvious that whether a witness had left the state and is beyond the jurisdiction of the court depends upon the facts and circumstances of each particular case.
Appellant in due time and manner urged a number of objections to the court's charge. His main contention seems to be that the court's charge limits and restricts his right of *Page 373 self-defense. We have examined that paragraph of the charge against which his complaint is addressed and find it to be an abstract statement of the law. It might be deemed somewhat restrictive but when the court in his charge made application to the law of self-defense to the facts, he gave a very comprehensive and adequate instruction thereon. It is a settled rule in this State that in determining the sufficiency of a charge, this court is required to consider it as a whole and if, when so considered, it appears to fairly present the law applicable to the facts, it will be deemed sufficient. It follows from what we have said that we are of the opinion that the court's failure to respond to appellant's objection would not warrant a reversal of the judgment.
Appellant's next complaint relates to the court's failure to instruct the jury in effect that if the defendant was justified in firing the first shot, he was justified in continuing to fire so long as it reasonably appeared to him that his life or person was in danger at the hands of the deceased. Whether or not such an instruction is required depends upon the facts of the particular case. We do not think that the facts in this case call for a charge. Appellant testified in substance that deceased caught hold of his arm and that he told deceased to turn him loose, that he wanted to go home; that he made an effort to get loose but did not attempt to draw his gun at that time; that the gun slipped down the leg of his pants while they were tussling and fell to the ground; that both of them reached for the gun; that he (appellant) got it; that he picked it up with his left-hand and shot the deceased; that he started shooting as quick as he could get hold of the gun and that he shot the deceased four times; that he shot until he thought his life was out of danger; that as soon as deceased turned him loose he quit shooting; that he did not offer to shoot any more after he realized that deceased had turned him loose; that he did not walk up to the deceased's body and shoot him after he was on the ground.
John Horton, Jr., testified among other things, substantially as follows:
"I don't know in which hand Lott (meaning the appellant) had the gun when he shot. The first two shots were just one right after the other. After the second shot Rufus fell. Just as soon as he hit the ground the defendant walked up and shot him two more times." *Page 374
There is no evidence that the parties had materially changed their positions from the time the first shot was fired until the firing of the last shot. The State's testimony shows that when the second shot was fired the deceased fell to the ground; that appellant shot him two more times. Appellant's testimony is that as soon as he picked up the gun he began to shoot and continued to do so until he realized that the deceased had turned him loose. These facts, in our opinion, do not call for the requested instruction. See Walker v. State, 98 Tex. Crim. 663.
Appellant's Bill of Exception No. 12 complains of the action of the trial court in failing to instruct the jury on the law governing one's right to defend a third person against an unlawful and violent attack. Appellant takes the position that since the evidence showed that the deceased had caught his wife by one arm and had hold of appellant's arm at the same time and told them that "this thing is coming to a close," required an instruction on the law justifying one in defending a third person against an unlawful and violent attack such as created in the mind of the party acting in defense of such third person an apprehension or fear of death or serious bodily injury to such third person. If the evidence in this case had raised that issue, the court no doubt would have instructed the jury on the law relative thereto. However, it is our opinion that the evidence does not call for such a charge. Deceased was not making an attack on his wife. It is true that he had her by the arm and when she tried to get away, he tore her dress on the shoulder; but no other hostile act or demonstration on the part of the deceased toward the wife was made which would indicate that the deceased was making an attack upon his wife which would reasonably create in the mind of the appellant an apprehension that deceased was about to inflict death or serious bodily injury upon her; nor did appellant claim to have shot in defense of deceased's wife. Therefore, that issue was not raised; hence, we overrule his contention. See Singleton v. State, 167 S.W. 46; 74 Tex.Crim. Rep..
No error having been presented by the record before us, the judgment of the trial court is affirmed.
We agree to the foregoing opinion, and adopt the same as the majority opinion of the Court.
HAWKINS, Presiding Judge.
GRAVES, Judge. *Page 375