The appellant was tried and convicted of the offense of murder, and his punishment assessed at confinement in the State penitentiary for a term of five years.
The testimony, briefly stated, shows that the appellant and his family, as well as the deceased and his family, had all resided in the city of Dallas; that some unpleasantness arose between the appellant and his wife which, according to his version of the affair, caused him to separate from her and he moved into Erath County, Texas, where he subsequently instituted divorce proceedings against his wife and prayed for the care, custody, and control of the children. His wife by cross action prayed for a divorce and for the care, custody, and control of the children. At the trial of the divorce suit in Erath County, Texas, the deceased appeared as a witness in behalf of the appellant's wife, and during the noon hour while court had taken a recess the appellant followed deceased out of the courtroom down on the street where he proceeded to shoot him with a pistol, as a result of which the deceased died. To make a more detailed statement of the affair leading up to the immediate time of the killing would serve no useful purpose except to place a sweet morsel upon the tongue of some gossiper.
By bill of Exception No. 1 the appellant complains of the admission of testimony to the effect that after the fatal encounter the deceased was searched and no weapon of any kind, not even a pocket knife, was found on his person. We think this testimony was admissible inasmuch as the appellant contended that he shot in self-defense, that deceased was making some demonstration which caused him to believe that deceased was about to attack him and carry into execution threats which he, the deceased, had made previously in his presence and hearing as well as those which had been communicated to him, and in support of the views herein expressed we refer to the case of Williams v. State, 17 S.W. 1071; Jowell v. State,71 S.W. 286; Graham v. State, 123 S.W. 693; Decker v. State,154 S.W. 566.
By bill of exception No. 2 the appellant complains of the action of the trial court in permitting the district attorney, while cross-examining Dean Cupp, a son of the appellant, to propound to him the following question: "You are glad he killed Jim Gamble?", to which the witness answered, "Yes sir." We *Page 13 believe that this testimony was clearly admissible in that it showed the interest and bias of the witness as well as his state of mind at the time that he was testifying and the law expressly places the duty upon the jury trying the case of determining the credibility of the witnesses and the weight to be given to their testimony.
By bill of exception No. 3 the appellant complains of the action of the trial court in permitting the district attorney, while cross-examining Dean Cupp, the son of the appellant, to ask him, "If it wasn't a fact that Mrs. Gamble let his father have $28.00 with which to pay his utility bills?" To which the witness answered: "No, he always had money to pay them." Q. "He did, young man, until he took up with this wild woman over there." The court sustained the objectiton of the appellant to all of said testimony with the exception of the last question. We do not believe that the last question was harmful in view of other testimony that was subsequently elicited by the State from the brother of the appellant.
By bill of Exception No. 4 the appellant complains of the action of the trial court in permitting the district attorney to prove that the appellant was a conductor of a street car in the city of Dallas and while such conductor he met one Thelma Hill and that this woman rode the street car at times but had no regular time to ride either day or night. The appellant's' objection to said testimony was that it was immaterial, irrelevant, and inflammatory. The bill of exception discloses that the objection was sustained by the court and the testimony was withdrawn from the jury by the court as well as by the district attorney and the jury were instructed not to consider the same. We believe that under the circumstances the bill of exception fails to disclose any error, especially in view of the fact that other testimony was introduced which tended to show that the appellant had become infatuated with said woman.
By bills of exception Nos. 5 and 6 the appellant complains of the action of the trial court in permitting the State on cross-examination of the brother of the appellant to elicit the following facts, to-wit: That appellant told him that his domestic affairs had been rather unpleasant; that he had made up his mind to quit Ollie, his wife, but that he would support the children and not Ollie; that he was through with her; that the other woman was a very fine woman; that she visited him while he was in the hospital after he had undergone an operation; that she brought him some flowers and appeared to be very affectionate. We do not believe that the bill of exception, *Page 14 under the circumstances discloses any error. It was the contention of the appellant that the deceased had invaded his home and destroyed his family's happiness and that he was the cause of the separation of the appellant from his wife. He was seeking to lay the entire blame of his separation from his wife upon the attitude of the deceased towards her. The testimony objected to was admissible for the reason that it tended to show that appellant was not worried as much over his separation from his wife as he attempted to show upon the trial in that he himself had become infatuated with another woman and that his separation from his wife may have been due to that fact instead of the relation which he claimed existed between his wife and deceased. It seems from the testimony that in a conversation by the appellant with his brother as well as by his action in instituting a suit for divorce that he had become reconciled to a separation but his real contention in the suit for a divorce was over the care custody, and control of the children. The deceased appeared at the trial as a witness in behalf of appellant's wife in her effort to obtain the care and custody of the children, which was perhaps the real and immediate cause of the homicide.
By bill of exception No. 7 the appellant complains of the action of the trial court in permitting the State to prove in rebuttal that appellant's wife gave appellant's life and accident insurance policies to Mrs. Gamble, and not to Jim Gamble, the deceased. The appellant had offered testimony that he was under the impression that Jim Gamble, the deceased, had his life and accident insurance policies. We do not see the materiality of this testimony. He, appellant, did not claim that this enraged him so as to render his mind incapable of cool reflection at the time of the homicide; this happened several months prior to the date of the alleged homicide. The appellant's contention was that the deceased had threatened his life, and that at the time he fired the fatal shot he believed from the acts and conduct of the deceased that he, the deceased, was about to carry his threats into execution.
We are not unmindful of the holding of this court in the case of Winn v. State, 113 S.W. 918, but we think that the case under consideration is distinguishable from that case. In the Winn case the appellant's barn was burned. He made an investigation and found a buggy track leading from where his barn was burned to the home of the deceased; he informed the officers that the deceased and Whaley had burned his barn, and the officers in turn informed deceased and Whaley of appellant's *Page 15 accusation. The deceased and Whaley became very much incensed, passed up and down the road inquiring and looking for appellant and making threats, and when they met, appellant shot and killed deceased. The appellant had a right to show his reason for accusing them of burning his barn because that was the very thing which induced him to accuse them of arson, which enraged the deceased and Whaley and produced the difficulty. If the State had been permitted to show that Whaley and the deceased did not burn the barn it would have appeared as if the appellant without any cause or provocation accused the deceased and killed him at a time when his mind was cool and calm, and would have deprived him of his right to show that his mind was agitated and had become enraged by the fact that he believed that deceased and Whaley had really burned his barn.
Bill of exception No. 8 relating to appellant's objection to paragraph eleven of the court's charge is too indefinite and does not specifically point out the error complained of and is therefore overruled. If the objection had specifically pointed out the error, it may have raised a serious question notwithstanding the decision in the case of Butler v. State,51 S.W.2d 384.
By bills of exception Nos. 9 and 10 the appellant complains of the court's charge in that the court charged on threats made by the deceased towards appellant in the presence and hearing of the appellant, because the same is too restrictive as applied to the facts in the case. We can not agree to appellant's contention because the court charged on threats made by the deceased in the presence and hearing of appellant and also charged on communicated threats.
By bill of exception No. 11 the appellant complains of the following instruction of the court, to-wit: "If you find the defendant guilty, and assess his punishment at a term in the penitentiary, the form of your verdict will be: 'We, the jury, find the defendant guilty as charged in the indictment and assess his punishment at confinement in the penitentiary of this State for __________ years.' (Here state the punishment you assess against him, if any, and if not more than five years, add to your verdict whatever your recommendations are as to the suspended sentence)." The appellant objected to said charge because it did not instruct the jury in the event they found him guilty whether guilty of murder with or without malice. We believe the better practice would be, if the court is going to give to the jury a form of a verdict, he should give a form of every *Page 16 kind of a verdict that may possibly be returned by the jury; otherwise, it may be construed by the jury to mean that the court is of the opinion that only a certain kind of verdict was justified under the law and the facts. However, in the instant case, the jury assessed the appellant's punishment at five years in the penitentiary, which is the maximum penalty for murder without malice, while the minimum penalty for murder with malice is two years in the penitentiary. Therefore, if the charge was error, it was harmless error, because if the jury found him guilty of murder and assessed his punishment at five years in the penitentiary, it could make little difference whether they said that the killing was with or without malice.
Finding no reversible error in the record, the judgment of the trial court is affirmed.
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