Appellant was convicted in the District Court of Hood County for the offense of manslaughter and his punishment assessed at confinement in the penitentiary for a term of two years.
This is the second appeal of this case. The first appeal will be found in 245 S.W. 692, where a sufficient statement of the facts is narrated.
Appellant again complains at the action of the court in permitting the witness Roberson to testify to certain statements made by the deceased immediately after he was shot. Among them, one to the effect "he shot me down as if I was a dog, he murdered me in cold blood." Appellant concedes that this identical question was passed on in the former trial of the case but declares that he is not satisfied with the conclusion the court reached with reference thereto. The opinion on the former trial is the deliberate judgment of this court, and we have no doubt about the accuracy of the conclusion as stated.
Appellant also complains because the court refused to permit him to introduce the testimony of J. C. Hays given on a former trial of the case. The bill shows that the witness Hays had been summoned and was under process and that his whereabouts *Page 191 was unknown and that appellant had not been able to get in touch with said witness and have him in attendance upon this trial, although he made all reasonable efforts to do so. The record shows that the witness testified on the former trial of the case, but it utterly fails to bring this testimony within the rule which permits the reproduction of a witness' former testimony on a trial of a case, in that it fails to show that said witness is either dead or out of the state or beyond the jurisdiction of the trial court. The authorities cited by appellant on this question are not in point as each of them relate to the reproduction of testimony where the party is either dead, out of the state or otherwise beyond the jurisdiction of the court. There seems to us to be no semblance of reason why appellant should have been permitted to reproduce this testimony in this case.
Appellant complains at the court's action in permitting the district attorney to ask one Pascall the question:
"I will ask you whether or not you went up to Frank Edrington's body while it was lying on the floor of the lobby after he had been shot down by L. E. Couch and while Couch was present and stooped over his body and picked up anything from his person or out of his hand and ran out of the lobby in a stooped position?"
To which the witness replied in the negative. The objection to this question is that it is leading and suggestive and highly prejudicial and because no predicate was laid therefor. The bill of exceptions is qualified by the trial court with the explanation that Mrs. Couch, the wife of defendant, had testified that Pascall had gone to the body of deceased soon after he fell and had taken from his pocket something and left the lobby of the hotel. The question was under the explanation of the court clearly admissible for the purpose of impeaching the wife of appellant.
If the photograph offered in this case should be offered on another trial evidence should first be offered identifying the same as correctly portraying the deceased at or near the time of the killing.
Complaint is also made with reference to the court's charge in submitting the issue of manslaughter to the jury. In submitting this issue the court gave the following charge:
"If therefore you believe from the evidence in this cause beyond a reasonable doubt that the defendant, L. E. Couch, in Palo Pinto County, Texas, and on or about the 4th day of August, 1920, did with a pistol shoot and kill F. E. Edrington, as *Page 192 alleged in the indictment, and you further believe that the defendant had previous to the killing been informed that the deceased had threatened his life and believed such information to be true, whether it was in fact true or not, and you further believe beyond a reasonable doubt that at the time and place the defendant killed the deceased they met and that by reason of such information, if any, as to threats made by the deceased against the life of the defendant, taken in connection with all the other facts and circumstances in the case and in connection with the conduct and language, if any, of the deceased at the time of and just before the killing and previous to the killing, or if from all of the facts and circumstances in evidence in this case you find there was aroused in the mind of the defendant such a degree of anger, rage, sudden resentment or terror as to render his mind incapable of cool reflection and in that condition of mind he shot and killed the deceased, and that he was not justified in so doing then you will find him guilty of manslaughter and assess his punishment at confinement in the penitentiary of this state for any term of years not less than two nor more than five in your discretion."
Appellant urged many objections to this charge. Without discussing this charge in detail it is difficult to say that we think it is misleading, involved and is not as clear and concise as it ought to be. We especially think that appellant's criticism of the same to the effect that it places a greater burden on him than is justified is sound. The burden is not on appellant to show justification for the killing, but the burden is on the state to show the killing is unlawful and if the evidence raises a reasonable doubt on this question, then the appellant should be acquitted. We are disposed to think that this rule was not followed in the above quoted charge, but we think a fair construction of the charge compels the conclusion that the jury was instructed to convict the appellant of manslaughter unless he was shown to be justified in the killing.
Appellant also complains at the court's action in refusing his special charge to the effect that the defendant had a right to arm himself and seek a peaceable interview with deceased and if he did so in a peaceable manner with no intention to provoke a difficulty with the deceased he would not forfeit his right of self-defense. The appellant's testimony shows many and various threats made against his life by the deceased. It also shows that deceased had on other occasions cursed and abused him in a most outrageous manner. It showed that the appellant was afraid of deceased and he testified that he carried *Page 193 the pistol to protect his life from the deceased. The court gave a charge on provoking the difficulty and we think in view of this fact construed in connection with the appellant's testimony that the appellant's special charge instructing the jury that the fact that he armed himself and sought a peaceable interview did not forfeit his right of self-defense should have been given. In fact, we think the authorities are uniform to this effect. Frazier v. State, 272 S.W. 454.
Appellant complains at the court's action in permitting the witness Roberson to testify to the effect that the appellant told him that he had been convicted of hi-jacking in Arizona. The record shows that this conviction occurred in 1908, and the killing in this case occurred in 1920, or 12 years thereafter. The record further discloses that the various witnesses testified that the reputation of defendant in all lines had been good for a number of years. The court in qualifying this bill says that the statement as made by the appellant to the witness Roberson appeared to be an effort on the part of defendant to intimidate the witness Roberson. We do not agree with the trial court that even from Roberson's statement as to how the transaction took place that there is any suggestion in this record that the appellant was attempting to intimidate the said witness. It was admitted that Roberson was not an eye-witness to the actual shooting. His testimony is concerned almost wholly with statements made by deceased to him after the shooting occurred. This being true, the witness Roberson testified to the following conversation with the appellant:
"After this homicide Mr. Couch had a conversation with me with reference to my testimony — it was just outside of the district court room in the hallway in the court house at Palo Pinto. He stated that some one had told him that I was going to testify to certain facts in this case and that he wanted to know as to whether or not it was true and he stated some facts. The facts mentioned that I was going to testify that he had (Edrington) said that Couch murdered him in cold blood, and I told him I certainly was, that I felt it my duty as a citizen from what Mr. Edrington told me in his death blood that he murdered him in cold blood. And Mr. Couch said 'Do you think you can afford to testify to that?' and I says 'I sure can, I will testify to the truth anywhere, any time,' and I asked him what he meant, and he says, 'you know the obligation you took at one time,' and I said 'the Masonic obligation,' and he says 'yes', and I said, 'I never took any obligation to protect a man I thought was guilty of crime.' He detailed some other facts *Page 194 that he thought I was going to testify about, it was about some trouble he got into in Arizona. He said he had been charged with hi-jacking, indicted and served a sentence in the penitentiary for it. I don't recall that he told me any other facts that he understood I was going to testify to. He didn't say anything else about my testifying to it except that he didn't see how I could afford to testify to those facts."
On cross-examination he testified as follows:
"At this conversation at the court house Mr. Couch stated to me that he had been told that I was going to testify that he shot Edrington down like a dog and wanted to know if I thought I could afford to testify to anything of that kind and I told him I could testify to anything that was the truth — I asked him why and he says, 'you know the obligation you have taken?' and I said, 'what do you mean, the Masonic obligation?' and he said 'yes', and I said, 'I never took any obligation to protect a man in crime.' I told him then that I thought he murdered him in cold blood. I am a Mason. I have never been in lodge with him. My membership is at Haskell. I never attended at Mineral Wells. Mr. Couch stated that he understood that I had been telling about this trouble in Arizona — I had been telling it — he told me it was true. I heard it reported before he told me. I had talked it before this time. I haven't taken any stock in this prosecution except what any citizen should do to testify to the truth when I am put on the stand. I wouldn't be positive as to the exact words I testified before but I state here that he confessed to me and told me all about it. My recollection is that on the last trial I mentioned it."
The witness further testified as follows:
"Mr. Couch had a conversation with me at the court house in Palo Pinto — I can't state when it was — it was prior to one of the trials, but at a time when the case was set for trial. I couldn't say which of those trials it was, but it is my opinion that it was the first. I have believed he killed him in cold blood — Mr. Edrington told me he did. Couch came to me and asked me if I was going to testify that he killed Edrington in cold blood and I told him I was. He never asked me about anything that Edrington said to me. I think the fact that Mr. Edrington said so is the best evidence in the world."
We fail to see how this testimony in any way indicated that the appellant was seeking to intimidate this witness. The fact that the appellant had been convicted in 1908, under the facts of this case, was entirely too remote and was not admissible for any purpose, and while under the statement of the trial court *Page 195 and the peculiar facts occurring on this trial, we might not be disposed to reverse the case on account of its admission, yet on another trial we think it the clear duty of the trial court to see that no reference is made to this former conviction.
There are many other errors complained of by the appellant but in view of the fact that they may not occur in the same form on another trial of the case a discussion of them is not deemed necessary, but for the errors above mentioned the judgment is reversed and the cause remanded.
Reversed and remanded.
ON MOTION FOR REHEARING.