Appellant was convicted in the Criminal District Court of Tarrant County of manslaughter, and his punishment fixed at five years in the penitentiary. *Page 195
It appears from the record practically without dispute that deceased and appellant's wife had been criminally intimate. Appellant testified that shortly before the homicide his wife confessed to him her relations with deceased following which his mind was in such a condition that he was hardly conscious of his actions. The shooting occurred in the morning as deceased was on his way to his work. The scene was laid at Ninth and Main Streets in the city of Fort Worth. According to State witnesses deceased was crossing said street going east toward his place of employment when observed by appellant, who thereupon took two or three running steps in the direction of deceased and in his rear and fired his pistol a number of times. Even after the officers had gotten hold of appellant he continued to fire until his pistol was empty. Appellant's own story of the immediate facts was that he was going east himself at said street crossing and observed deceased with his hand in his side pocket looking at him (appellant) and that he at once pulled his pistol and began shooting. Many bills of exception might have presented different aspects if the conviction had been for a higher offense than manslaughter.
State witness Howard was asked with reference to the deceased: "Did you see him attempt to strike the defendant or to harm or injure him in any way?" We do not think the objection to this sound. It was but what has frequently been called a shorthand rendering of the facts, a statement of the witness succinctly embracing the propostion that he did not see the deceased do anything amounting to an attempt to strike, harm or injure the appellant.
Bills of exception Nos. 4, 5, 6, and 7 present the objection of the defense to questions asked of the appellant while a witness, the purpose of which was to elicit his knowledge, if any he had, of his wife's relations with deceased and a man named Harry __________, prior to the time of the claimed confession by the wife of appellant of her guilty relation with deceased shortly before the killing. All the questions asked as set out in said bills were answered in the negative, and the record reflects no attempt to pursue the matter further, and in our opinion none of the objections are tenable.
By his bill No. 9 appellant sets out the rejection of offered testimony that at the time of the trial he was living at home with his wife and children. The statement of facts contains in the direct testimony of appellant his statement that at the time of trial he was living at his home with his wife. If no such contradiction appeared in the record, we would still conclude ourselves unable to detect the pertinence of the testimony to any issue in this case.
Bills of exception Nos. 10 and 11 complain of the rejection of evidence which could have been material only as affecting the relations between appellant's wife and deceased, discovery of which *Page 196 was relied upon to reduce the offense to manslaughter. The conviction being only for that grade of homicide, rejection of the testimony would be held harmless.
Mrs. Vera Blackwell for the defense swore that deceased and appellant's wife had on several occasions occupied a room at her hotel. The State had said witness admit that she had been arrested and charged in the courts with keeping a disorderly house. The testimony of said witness only going to establish facts reducing the case to manslaughter, and the jury having accepted that theory and found a verdict only for that offense, if error appeared in the reception of the evidence, we would hold it harmless, but under our authorities keeping a disorderly house is an offense involving moral turpitude and the testimony was admissible as affecting the credibility of the witness. Bird v. State, 148 S.W. Rep. 738; Bogue v. State, 155 S.W. Rep. 943.
From bill of exceptions No. 14 it appears that appellant placed Mrs. Moore on the witness stand and asked her if shortly prior to this homicide she had a conversation with deceased concerning the wife of appellant, to which the witness replied in the affirmative. She was then asked by the defense the following question: "What did you tell him and what did he say to you?" The court sustained the State's objection, no reason for the objection being assigned. In 142 S.W. Rep. appear court rules for district and county courts of this State, and part of Rule 57 is as follows: "Exceptions to the admission of evidence on trial where no reason is assigned for objection to it, shall not be sustained where the evidence is obviously competent and admissible as tending to prove any of the facts put in issue by the pleading." As applied to this case, we observe that manifestly what was said to the deceased by the witness, and by the deceased to said witness with reference to the wife of appellant, would not be "obviously competent and admissible", — and certainly there could be nothing in such question to apprise the learned trial court of the fact that what appellant really wanted was testimony of part of said conversation relating to appellant himself. When the question objected to did not call for an answer so "obviously competent and admissible", it devolved upon appellant to ask for what he wanted in such form as to reasonably make same appear, or else inform the court as to how the question asked led up to or was related to some material matter. Graham v. State, 28 Tex.Crim. App. 582; Coyle v. State, 31 Tex.Crim. Rep.; Lookman v. State, 32 Tex.Crim. Rep.; Martin v. State, 32 Tex. Crim. 443; Welch v. State, 57 Tex.Crim. Rep.. In Levine v. State, 35 Tex.Crim. Rep., appears the following statement:
"Because testimony is admissible for some purpose, it does not follow that it is introduced for such purpose, and it may not occur *Page 197 to the court before whom the testimony is presented, that it is admissible. Hence the object and purpose of the testimony should be stated to the court, in order that the lower court may be enabled to rule correctly as to its admissibility, and, if the evidence be rejected, this purpose should be stated in the bill of exceptions."
Other authorities will be found collated in Sec. 48 of Mr. Branch's Criminal Law. We think the rule a sound one. A conversation between the witness and another party, proffered without explanatory statement or obvious relevance, was properly rejected, and error could not be injected into the action of the court by a statement in the bill of exceptions that said witness would have pursued the conversation to a point where same would have been related to the accused. Unless such fact had been brought to the attention of the trial court.
There is a bill complaining that the State asked appellant as to a conversation had between him and his wife some hours after the killing in which she cursed him and told him he had killed the wrong man. When asked about this appellant denied having had such conversation. This ended the inquiry. The obvious purpose of the question was to affect the issue of manslaughter. The verdict shows the futility of the effort on the part of the State and renders harmless the error, if any.
Proof that a witness asked deceased to move from her place because he used vile language on the premises and would not pay his rent, would seem manifestly of no benefit to the case of appellant.
Bill No. 17 as to statements of the assistant district attorney in urging the admissibility of certain testimony, if susceptible of injury in any event, would be harmless because same tended merely to show that the State had other witnesses and other evidence to combat the proposition that the homicide was under circumstances reducing it to manslaughter.
We are unable to perceive the weight of the objection by the defense to testimony for the State given by an officer to the effect that not long before the homicide he saw deceased who had been badly beaten up, and later he saw appellant and told him that he had better be careful, that he was going to get into trouble and might be sent to the penitentiary. It appears without controversy that appellant had had a fight with deceased before this time.
Bill No. 19 presents appellant's objection to testimony as to a statement made by him to officer Mansker before the homicide in which he said that he would not be sent to the penitentiary because his father had too much money. This seems to have been objected to on the ground that it was an attempt to impeach on an immaterial matter, was hearsay, irrelevant and immaterial. The declaration was one made by the accused and no predicate was necessary: neither *Page 198 would the objection that it was hearsay apply. Objection on the ground of irrelevancy and immateriality would be too general.
We have carefully reviewed all of the objections made and shown in the record and as discussed in the able brief on behalf of appellant and find ourselves unable to agree that reversible error appears in any of them or that they reflect the fact that a fair and impartial trial was not accorded to the accused.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.