Appellant was convicted of murder and his punishment assessed at thirty years in the penitentiary. This is a companion case of the same appellant, recently decided, 74 Tex.Crim. Rep., 168 S.W. Rep., 534.
Appellant complains that a new trial should have been granted because, in effect, the jury arrived at its verdict by lot, — that is, a quotient verdict. The court heard evidence on this issue which is shown by one of appellant's bills. Mr. Branch in his Criminal Law, section 844, second subdivision, says: "If jurors take the average as a means of securing an expression as to their views in respect to the punishment (making an experiment), and with no agreement in advance to be bound by the result, or if agreement is broken, the court's finding of no error will not be disturbed on appeal. Leverett v. State, 3 Texas Crim. App., 213; Cravens v. State, 55 Tex.Crim. Rep., 117 S.W. Rep., 153; Goodman v. State, 49 Tex.Crim. Rep., 91 S.W. Rep., 153; Reyes v. State, 56 S.W. Rep., 629; Pruitt v. State, 30 Texas Crim. App., 156, 16 S.W. Rep., 773; Barton v. State, 34 Tex.Crim. Rep., 31 S.W. Rep., 671; Hill v. State, 43 Tex.Crim. Rep., 67 S.W. *Page 77 Rep., 506." The trial judge was justified in holding, as he did, that the verdict in this case was not an illegal one under this line of authorities.
Appellant has several bills of exceptions to the admission of certain testimony. We will give his first on this subject in full. Omitting the number, style of the case and the court below, it is:
"Be it remembered that upon the trial of the above styled and numbered cause Mrs. John Guest, widow of deceased, was called to the stand by the State and was asked if prior to the time that defendant killed John Guest, during her husband's entire lifetime, she ever heard him make any threat of any kind or of any character whatever against John Lamb, and answered that she did not.
"To this the defendant objected as an attempt to prove the character of the deceased; because it relates to a purported statement by deceased long prior to the killing, and because defendant does not rely upon any threats as a provocation for the killing. The court overruled the objection and defendant then and there excepted, and now tenders this his bill of exception and asks that same be approved, ordered filed and made a part of the record herein; which is accordingly done.
"Approved Apr. 1st A.D. 1914. Jas. W. Swayne, Judge 17th District Court, Tarrant County, Texas."
Clearly under the rules established by the Supreme Court when it had criminal jurisdiction and by this court upon its organization in accordance with the statute this bill is so meager and insufficient as to neither require nor authorize this court to consider the question sought to be raised. James v. State, 63 Tex.Crim. Rep.; Conger v. State, 63 Tex. Crim. 312; secs. 857 and 1123, White's Ann. C.C.P.; Best v. State, 72 Tex.Crim. Rep., 164 S.W. Rep., 996.
However, we have considered the admissibility of the evidence attempted to be raised by all of his bills, and in our opinion, the evidence was properly admitted.
The evidence objected to by these various bills is along these lines: First, as to what was said and done by appellant and by deceased from the time they first came in view of each other at which time the killing occurred, and that the appellant when leaving the scene of the killing immediately after it, had two six-shooters, one in each hand, and when the constable attempted to arrest him for killing deceased he resisted arrest and shot the constable. All this testimony, we think, was clearly admissible as res gestae. Girtman v. State, 73 Tex. Crim. 158, 164 S.W. Rep., 1008, and cases cited; Washington v. State, 19 Texas Crim. App., 521, 53 Am. Rep., 387; Wiseman v. State,32 Tex. Crim. 454, 24 S.W. Rep., 413; Koller v. State,36 Tex. Crim. 496, 38 S.W. Rep., 44; Means v. State, 10 Texas Crim. App., 16, 38 Am. Rep., 640; Cox v. State, 8 Texas Crim. App., 254, 34 Am. Rep., 746; Johnson v. State, 30 Texas Crim. App., 419, 17 S.W. Rep., 1070, 28 Am. St. Rep., 930; Tooney v. State, 8 Texas Crim. App., 452; Elmore v. State, 78 S.W. Rep., 520; Stanley v. State, 44 S.W. Rep., 519; Ency. of Ev., p. 615; Renn v. State, 143 S.W. Rep., 167.
Second. Appellant by his cross-examination of the State's witnesses — *Page 78 he introduced none — attempted to show an intense hostility by deceased against him which had continued for quite a length of time. So much so as to estrange his mother and sister with whom he lived from him and they sought protection by leaving his home and going to deceased's, and that deceased, in effect, denied him access to his mother and sister; that deceased carried arms, — guns, — for the purpose of killing him and deceased seeking to kill him and have others to do so, all growing out of what he claimed was the deceased's attempt to control the property and prevent his mother from dividing hers with him and turning it over to him. We do not attempt to give the particulars of these matters, nor any of them in detail. The State undertook to meet appellant's contentions and the evidence brought out by him along this line by having various witnesses testify of their own knowledge that the deceased had no ill-will against appellant and, in effect, denying all of appellant's claimed acts of hostility and claimed intentions and plans to kill him. When he raised these questions and by his examination of the witnesses on cross-examination, introduced evidence tending to support his contentions, the State had a right to meet it by the proof it introduced to show the contrary.
Manslaughter was not in the case. There is no evidence whatever even suggesting adequate cause.
Appellant objected to the court submitting provoking a difficulty at all, and made many objections to the charge itself. From a careful study of the evidence we believe provoking a difficulty by appellant for the purpose of killing the deceased was raised by the evidence and the court correctly submitted it. None of appellant's objections to the court's charge in this respect show any reversible error.
The court did not err in overruling appellant's motion to quash the indictment. The grounds of the attack of the indictment in this case we regard as more than ordinarily hypercritical. One objection is wherein in the indictment it is alleged that appellant killed the deceased with malice "aforethought" the "t" at the end of the word was omitted. Taking the indictment as a whole, there can be no question but that the leaving off of the "t" in the spelling of said word could in no possible way have misled appellant nor be fatal to the indictment.
We have given this case careful investigation and study and in our opinion no reversible error is pointed out.
The judgment is affirmed.
Affirmed.
ON REHEARING. October 28, 1914.