Appellant was convicted of murder; punishment fixed at confinement in the penitentiary for a period of twenty-five years.
Jones Richardson was shot and killed by the appellant. They were brothers, both being of mature years. They were, at the time, in the house upon the farm known as the "old Richardson Home *Page 320 Place." It had been owned by appellant's father and mother; had been their home prior to his death and her home thereafter. Appellant also resided there for twelve years immediately preceding the homicide. His mother, for a short time, had been away, leaving her personal belongings. The daughter and son-in-law of appellant also resided on the farm. They, however, were moving away from it, and appellant was in the act of moving to the city of Tyler, where he was in business. The deceased resided with his family in the state of Oklahoma and had done so for about twelve years.
The appellant had purchased the interest in the farm of all the children save the deceased, and his mother had made to him a deed to her interest. Shortly preceding the homicide, the deceased came to the vicinity, and, acting on behalf of his mother and in her name, brought against the appellant a forcible entry and detainer suit for the possession of the farm, and upon the trial the judgment was in her favor and from it appellant appealed.
Evidence of threats against the deceased and conduct indicating ill-feeling and expressions of such sentiments was introduced.
Appellant's mother testified that she made the deed to the appellant without understanding the nature of the document that she executed.
Appellant denied the threats and expressions of bad feeling, though he did not think the deceased had treated him right. He explained his possession of the pistol on the occasion of the homicide by stating that he had had difficulty with another person and was expecting trouble with him; that he had no knowledge of his brother being at the place when he went there; that on arrival he learned from his mother that his brother was there, and he walked up and said: "Hello, Jones; what are you doing here?" and he said: "I will show you," and jumped up and got his gun out of his grip and cocked it; and the appellant said to him, three or four times: "Take it out of my face." He then retreated a couple of steps. The deceased advanced. His mother sought to interfere. Appellant said: "He must take that gun out of my face;" that Jones said to his mother. "Step aside, I am going to shoot," whereupon the appellant shot. Appellant fired one shot, which killed the deceased.
There was sharp conflict in the testimony touching the possession of the pistol by the deceased at the time of the homicide.
Complaint is made in Bill No. 2 of the receipt of evidence to the effect that the appellant stated that he had appealed the forcible entry and detainer case. In qualifying the bill, the court said that the testimony given by the witnesses was this: "I heard defendant say that he had appealed the case that his mother had won against him and that he didn't see what Jones, his brother, was doing there on the place." This testimony, coming as it did, shortly preceding the homicide, related such a declaration by the appellant as was, in our opinion, available to the State upon the issue of motive. The declaration of the appellant was competent and relevant to show his state of mind *Page 321 towards the deceased. McKinney v. State, 8 Texas Crim. App. 627; Branch's Ann. Tex. Penal Code, Sec. 1881, and cases listed.
A witness who had given material testimony in favor of the appellant was asked, on cross-examination, if he had not stated with reference to the deceased: "The son-of-a-bitch is dead in hell, where he ought to be." Upon the denial by the witness, proof was made for the purpose of impeachment that he did make the statement. This testimony, in our opinion, was admissible under the rule which permits the opposing party to break the force of the testimony of an adverse witness by proof of his bias or prejudice. Watts v. State, 18 Texas Crim. App. 384; Brownlee v. State, 48 Tex.Crim. Rep.; Gilber v. State,56 Tex. Crim. 462; Tow v. State, 22 Tex.Crim. Rep.; Branch's Ann. Tex. Penal Code, Sec. 163 and cases listed.
While upon the witness-stand, State's counsel directed to the appellant this question: "Isn't it true that some five or six years ago, in Parker County, you were tried, indicted and convicted of the offense of bigamy, and sent to the penitentiary for that offense?" Objection was made, as stated in the bill, upon the ground that before the witness was placed upon the stand, his counsel asked the court to instruct the State's counsel to refrain from making inquiry for the reason that the conviction had taken place in the year 1912. The court required an answer, which was: "Yes, sir; that is correct." In approving the bill, the court disallows the part thereof stating that he was requested to prevent the inquiry on account of the date of the offense. He calls attention to the fact in his qualification that the question did not indicate that the inquiry related to a remote offense, and adds that it was on re-direct examination; that it developed that the conviction took place in October, 1912; that prior to this development on re-direct examination, the court had no information as to the date other than indicated by the question. The propriety of making proof of the conviction of other felonies to affect the credibility of the accused when testifying as a witness is well established. Lights v. State, 21 Texas Crim. App. 313, and other cases listed in Branch's Ann. Tex. Penal Code, Sec. 167. We are not advised of any rule that would have excluded the testimony as too remote even if there had been a request to do so. Instances are available in which such testimony has been received over the objection that it was too remote when the prior offense had occurred at a time more distant than in the instant case. Scoville v. State, 77 S.W. Rep. 792. Even, however, if the time of the prior offense was too remote to render proof of it available to the State, the matter, as presented, does not authorize a reversal upon that ground. The question, as framed, fixing the time at five or six years, gave no indication that it called for testimony too remote (Davis v. State, 52 Tex.Crim. Rep.), and the bill, as qualified, shows that the trial court had no knowledge that the conviction had occurred prior *Page 322 to the time indicated by the question. After the date was revealed upon re-direct examination, no request was made to exclude the testimony.
Three special charges bearing upon the possession of property were requested. One of them reads thus:
"You are charged that in law the defendant was in possession of the home where the killing occurred and that he had a right there, and that the deceased did not have the right to forcibly eject him and the place of the homicide the deceased undertook to eject him then if you find from the evidence that when the defendant returned to the defendant had the right, under the law, to defend his possession of the property and if you find from the evidence that he shot and killed the deceased in defense of his home you will acquit the defendant, or if you have a reasonable doubt as to this you will acquit."
Another charge in substantially the same language was given, and the third was in these words:
"You are further charged that the defendant had a legal right to the possession of the premises where the homicide occurred and that he had the further legal right to inquire into and demand an explanation of the presence of any other person whom he might find in possession of or on said premises."
The third special charge was given, the others were refused, and the refusal is complained of. We do not regard the complaint as meritorious.
Touching the homicide in defense of property, our statute is as follows:
"Homicide is justifiable also in the protection of the person or property against any other unlawful and violent attack besides those mentioned in the preceding article, and, in such cases, all other means must be resorted to for the prevention of the injury, and the killing must take place while the person killed is in the very act of making such unlawful and violent attack; and any person interfering in such case in behalf of the party about to be injured is not justifiable in killing the aggressor, unless the life or person of the injured party is in peril by reason of such attack upon his property." (Penal Code, Article 1107).
Also, the possession must be corporeal property and not a mere right, and the possession must be actual and not merely constructive. The possession must be legal, though the right to the property may not be in the possessor. Every effort in his power must have been made by the possessor to repeal the aggression before he would be justified in the killing.
We have given above a synopsis of the testimony as we comprehend it. That pointed out by the appellant as raising the issue is that of appellant stating his age — forty-four years of age; that the deceased was younger; that appellant and his family had resided there for a number of years; that his mother had also lived there; that he *Page 323 had bought from or contracted for all the interest of all the heirs except the deceased and had received the deed to the land from his mother in 1915, and had claimed the place since that time; that the deceased had an interest in it, but that it was only a short time before the homicide that appellant learned that the deceased had anything to do with the possession; that deceased had never come to him with reference to his interest in the land; that his mother had left home on the eighth day of January, while the appellant was in Tyler; that he heard that the deceased came on the 23rd of December, but did not know of his own knowledge when he came. Appellant's daughter testified that she had heard the deceased remark: "We have got possession now, and that is what I have been working for, and that is all I want." It is not clear that this was communicated to the appellant.
The facts do not impress us as presenting the issue that the homicide was in defense of property, but the true issue was whether it was in defense of appellant's person. If the issue existed, we think the special charges requested were not pertinent to present it. They ignored the essential elements of the law of homicide in defense of property, namely, that of resorting to other means before taking life. In the case of Wells v. State, 63 Tex.Crim. Rep.. Presiding Judge Davidson, speaking for the court, said:
"They were some feet apart; the distance is made uncertain by the varying testimony of the witnesses, the defendant's evidence putting him at the door, the State's witnesses putting him back from the door. Appellant was in the room and deceased upon a gallery. The law requires before killing, the possessor of the house must use every other reasonable effort in his power to repeal the intrusion in order to be justified in taking human life. Where a party is an intruder or trespasses upon the habitation of another, or being his guest, puts himself wrong by his conduct in the house, the owner has a right to put him out, provided he uses no more force or greater of more dangerous means than was necessary to effect the expulsion of the party. Turner v. State, 16 Texas Crim. App. 378; Stanley v. State, 16 Texas Crim. App., 392; Hinton v. State, 24 Tex. 454. Reasonable force must be used. McGray v. State, 38 Tex. Crim. 609. And it was held in Sargent v. State, 35 Tex. Crim. 325, that on a trial for murder, where the evidence presented the issue of an unlawful intrusion into the home, the defendant would have no right to complain of a charge which authorized him to slay deceased for such intrusion after he had resorted to all other means except retreating to get rid of him."
In the instant case, on the facts viewed in their strongest light in favor of the appellant, the house in which the homicide took place was the home of the mother of appellant and deceased. The deceased was there with the consent of the mother. His presence cannot be *Page 324 given the color of an attempt to eject the appellant by physical force. Admittedly, the means to which he had resorted to oust the appellant were those provided by law. There was litigation pending. The mother, admittedly entitled to possession coinciding with that of appellant, was also claiming title. The deceased was the owner of an interest in the property and to settle the differences, resort was had to the courts. The fact that the homicide took place upon the premises in controversy did not characterize it as a homicide in defense of the property. Such a construction of it would have been manifestly against the rights of the appellant. From his standpoint, he was attacked by the deceased and fired to save his life. His right to defend his person was far broader than his right to defend his property. In Ruling Case Law, Vol. 13 (page 839), it is said:
"It is not true, as a general rule, that an invasion of property rights constitutes an excuse for homicide. On the contrary, it is only when the element of danger to the person is present that the law countenances the taking of human life. The fact that the slayer is on his own land at the time of the killing, and the further fact that the deceased was engaged in the acts of aggression or violence, are of great — oftentimes conclusive — probative force in establishing self-defense; but it is a defense of the person that is in issue, not the element of protection of property dissociated from protection of person."
In Hill v. State, 43 Tex.Crim. Rep., the court said:
"The difficulty here arose as to the right of appellant to pasture his horse on the lands of the prosecutor, and this involved the right to the possession of said land. The difficulty itself, however, did not occur in the defense of property. Possession was a disputed question. It appears that the land had been awarded to appellant, and prosecutor had been living on that section for some time, and was still living on it. The fact that the altercation grew out of adverse claims to the possession of property would not require a charge involving the right of appellant to protect his claim to the property against an intrusion of the prosecutor."
On the subject under discussion, we think the rights of the appellant were fully conserved in giving to the jury the special charge which we have quoted above.
The court, in separate paragraphs, charged on the law of murder, manslaughter and self-defense. In one of the concluding paragraphs of the charge, the court instructed on the law of reasonable doubt as applied to the whole case. An exception was reserved to the failure of the court to charge on the law of reasonable doubt as between the grades of homicide. We think this would have been the better practice, and it is conceivable that a case might arise in which the refusal to do so would be harmful error. McCall v. State, 14 Tex.Crim. Rep.; Murray v. State, 1 Texas Crim. App. 417; Blake v. State, 3 Tex.Crim. Rep.. The general rule, however, seems *Page 325 not to imperatively demand that the trial court give such an instruction where, as in the instant case, the law of reasonable doubt is in the charge applied to the whole case. In Cockerell's case, (32 Tex.Crim. Rep.), Judge Davidson, on the subject, used the following language:
"Even had the court failed to instruct the jury to apply the reasonable doubt between the degrees of culpable homicide charged upon, such omission would not have been error where the court applies such doubt to the whole case;" citing Hall v. State, 28 Texas Crim. App. 146, wherein it is said: "The charge of the court is made the subject of several objections, which are claimed for error. It is objected that the court did not instruct the jury to apply the reasonable doubt as between the several degrees charged upon. Such omission has never been held reversible error, where the court applies the reasonable doubt to the whole case, except in those cases where such an additional instruction has been specially requested and refused by the court."
Other cases directly in point are found, among them being Little v. State, 39 Tex.Crim. Rep.; Wallace v. State, 97 S.W. Rep. 1051; Furr v. State, 194 S.W. Rep. 398.
There are other bills of exceptions which we have carefully examined. They, in our opinion, present no doubtful question or matter which we deem it necessary to discuss.
We find no error in the record, and therefore order the judgment affirmed.
Affirmed.
ON REHEARING. March 22, 1922.