The appellant was convicted of murder, and his punishment assessed at seven years in the penitentiary.
This is the second appeal of this case to this court. The first appeal will be found in 281 S.W. 213, where some of the facts are set out and discussed. It might be well to state in this connection that the appellant failed to testify in his own behalf.
The record contains eight bills of exception. Bill No. 1 complains of the statement of the private prosecuting attorney R. B. Cross, while objecting to the action of appellant's counsel in seeking to prove the good reputation of appellant as being a peaceable, law-abiding citizen as follows: "If the court please, *Page 61 the defendant has not taken the stand, and at this stage of the case his general reputation is not admissible and we object to it." The objection to said remark was sustained by the court and the jury were instructed not to consider it for any purpose. The appellant contends that the attorney's reference to the defendant's failure to testify in the presence of the jury was such harmful error that the court could not withdraw same from the jury. We are of the opinion that this contention cannot be sustained, as the statement complained of in this bill appears to have been only an incidental reference to the defendant's failure to testify, and was not of such a harmful nature that the court could not withdraw it from the jury. This court has held many times that incidental references to the defendant's failure to testify are not always sufficient for a reversal. Gatlin v. State, 72 Tex.Crim. Rep.; Rogers v. State, 180 S.W. 674; Henson v. State, 168 S.W. 89.
In bill No. 2 complaint is made to the action of said attorney Cross, while the appellant was cross-examining the state's witness Mrs. W. F. Broomfield and interrogating her as to being certain that she had formerly testified in this appellant's case, in stating to said witness that she was thinking of the "Ed Blackwell and not the Clifford Blackwell case." The appellant contends that the assistance given the state's witness by the private prosecutor was harmful in depriving him, appellant, of the privilege of testing properly the witness' memory. As we understand it, this bill discloses that the witness was mistaken as to having testified on the former trial of this case, and really intended to refer to her testimony in the Ed Blackwell case. We are of the opinion that this error was not of such harmful nature as to require a reversal of this case. The bill shows that the witness was mistaken, which would serve the purpose which the appellant sought to reach by his method of interrogation. While it is improper for attorneys to interfere with each other in such matters, or attempt to assist a witness, still we think this court should not reverse a case on such a ground as this unless it is shown that the appellant was injured thereby, which the bill in the instant case fails to do, in our opinion.
Bill No. 3 complains of the action of the court in permitting the state to show by the witness Orville Hill that he had seen the father of the appellant, Ed Blackwell, with a pistol. The court qualifies this bill by stating that Ed Blackwell testified on direct examination that he had never owned or carried a pistol, and that just after this homicide was committed he and the appellant were present when a pistol was found at the scene of the homicide. This bill, as qualified, shows no error. *Page 62 The state should have been permitted to contradict the testimony of Ed Blackwell, if it could, by showing that his statement relative to having a pistol was untrue. It was evidently the state's contention that the pistol found at the scene of the homicide shortly thereafter was not the pistol of deceased, but was placed there by someone in the interest of the appellant.
Bill of exception No. 4 complains of the refusal of the court to give in charge to the jury appellant's special charge No. 1 to the effect that unless the jury believed beyond a reasonable doubt that the complete destruction of the life of deceased was caused by the act of appellant, to acquit him. From this bill, it appears that the appellant's complaint is based upon the fact that the jury should have been told that if the deceased died from the effects of his fight with appellant's father, then the appellant should be acquitted. We think the court's main charge on this issue, supplemented by special charges Nos. 2 and 3 given by the court at the request of appellant, sufficiently presented this issue to the jury. In special charge No. 2 the court charged the jury that if they believed from the evidence that the acts of Ed Blackwell caused the death of the deceased, or if they had a reasonable doubt thereof, to acquit the appellant. In special charge No. 3 the jury were instructed that the motive, acts and intent of Ed Blackwell in the difficulty with deceased could not in any manner bind the appellant unless same were known and adopted by him.
In bill No. 5 complaint is made to the court's charge in that it did not inform the jury that Ed Blackwell had the right to pursue the deceased as long as he believed that such pursuit was necessary to protect his life, and that if he did pursue the deceased, same would not be a limitation of the appellant's right of self-defense. We are of the opinion that the facts in this case did not call for such a charge. There is no evidence showing that at the time appellant shot the deceased the appellant's father, Ed Blackwell, was pursuing the deceased in order to prevent deceased from killing him or inflicting serious bodily injury upon him. On the contrary, all of the evidence shows that at the time the fatal shot was fired by appellant Ed Blackwell was making no effort toward pursuing deceased, nor was deceased retreating from Ed Blackwell.
In bill No. 6 complaint is made to the refusal of the court to charge the jury that the fact that the appellant had filed an application for suspended sentence could not be considered as evidence of his guilt. There is nothing in this bill, or in the record, showing that there was any contention by the state that the filing of such an application was evidence of guilt, and *Page 63 in the absence of such an issue it was not necessary for the court to give such a charge. Hendley v. State, 250 S.W. 174; Campbell v. State, 84 Tex.Crim. Rep..
Bill No. 7 complains of the remarks of the attorney Cross, in his closing argument to the jury, as follows:
"The defense contends that the court's charge instructs you to view this matter from the standpoint of the defendant. What was his standpoint from all the facts in the case, according to his own witnesses? According to all the witnesses, where was he and what was his viewpoint? None of them say where Clifford was."
It is contended by the appellant that this argument was an indirect reference to the failure of the appellant to testify. We are not in accord with this contention. This court has repeatedly held that such an argument does not bear such a construction unless there is no other person except the appellant to whom such an argument could refer. In the instant case the record discloses that several of the appellant's brothers knew where he was at the time of the fight between deceased and appellant's father began, and when the appellant ran to the scene of the difficulty there were many witnesses present who testified to what they saw and what was done thereafter. This argument could have referred to anyone else as well as to the appellant, and there is no merit in appellant's contention. Patton v. State, 287 S.W. 51. This bill further discloses that the court's attention was not called to the argument, nor any bill of exception taken thereto, at the time it was made, but that the court's attention was called to same after all the argument was over. In the case of Smith v. State, 104 Tex.Crim. Rep., 286 S.W. 223, this court held that an objection and exception to the argument of a private prosecuting attorney was not sufficient to show error when the exception was not taken during the argument and at the time it was made. Also see Harris v. State, 93 Tex.Crim. Rep.,249 S.W. 485; Simmons v. State, 93 Tex.Crim. Rep.,248 S.W. 392.
Bill No. 3 complains of the refusal of the court to permit the appellant to show by Dr. Haynes that he had attended appellant's brother on the 19th of July, 1925, following the homicide on June 6th, and that appellant's brother was suffering from typhoid fever; that after investigating the entire premises, except a shallow well near the scene of the homicide, he was unable to find any place suitable for producing the typhoid germs; that said germs could pass from the bowels of a well person into a shallow well and there multiply and remain indefinitely; and that said germs could be transferred to people drinking *Page 64 therefrom. It was the contention of the appellant that this testimony was admissible for the purpose of corroborating the testimony introduced in his behalf to the effect that he, his father and his brothers, had gone down to the well just prior to the homicide for the purpose of watching said well, and as bearing out their contention that the deceased had polluted the well in the manner above mentioned. The court, in qualifying this bill, states that what was sought to be shown by the doctor's testimony was unknown to the appellant at the time of the homicide, and hence was inadmissible. We fail to see any merit in the appellant's contention in this instance, and are of the opinion that there is no error shown in the exclusion of this testimony.
The appellant, in his brief, contends that the court erred in failing to charge the jury on the law of self-defense as applied to himself. The court fully charged the law on appellant's defense of his father, but did not charge on the appellant's right of self-defense individually. The failure to so charge was not objected to by the appellant before the main charge was read to the jury, as required by the statute and the decisions of this court. This being the case, this court is without authority to consider this complaint.
Art. 680, C. C. P., not only requires objections to the court's charge to be made before it is read to the jury, but, to be sufficient, same must distinctly specify each ground of objection complained of. Garner v. State, 99 Tex. Crim. 618,271 S.W. 92; on rehearing; Woodell v. State, 103 Tex. Crim. 86, 279 S.W. 840.
Finding no reversible error in the record, we are of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.