The appellant was convicted of murder, and his punishment assessed at 25 years in the penitentiary.
The record discloses that the appellant was the son-in-law of *Page 530 the deceased, S.C. McClurkan, and that prior to the homicide appellant, who was supposed to be suffering from tuberculosis, left his wife and small child in Jones County and went to the vicinity of San Angelo for the purpose of taking treatment; and that after remaining there for a short time, he returned to the home of his father, which was in the neighborhood of deceased's home. It was the contention of the state, and evidence was introduced to that effect, that the appellant, about sun-down on the day of the homicide, entered the residence of deceased with a pistol in his hand, walked into the room where deceased sat reading in the presence of appellant's wife and her sister, Mrs. McCormick, and informed deceased that he had heard of the threats which deceased had made against him, to which the deceased, after some hesitation, replied that he had not made any threats, whereupon appellant, without provocation, shot and killed the deceased as he sat in the chair where he had been reading. The appellant defended upon the ground — and he so testified and introduced other evidence to that effect — that when he left home to go to San Angelo on account of his tubercular trouble he and his wife were on good terms; that after he reached San Angelo he received information through his mother to the effect that his wife had informed her that she could not live any more with the appellant under the circumstances, that her father did not want her to do so, and that she was going to take the baby and lease; and that on the day preceding the homicide deceased informed appellant's brother that he didn't want appellant around his premises any more, and that if appellant came around his premises again he would kill him. It was also the contention of the appellant that on the evening of the homicide he saw a letter purported to be from the deceased to appellant's father, and which, in substance, requested that appellant stay away from his premises and stated that a failure to do so would result in appellant's death. The appellant also testified that said threats and the thought of deceased's attempts to separate him from his wife and child preyed upon his mind until he decided to arm himself against an attack by the deceased and seek an explanation as to why deceased was attempting to separate him and his family. He further testified that upon entering the room where deceased sat he informed deceased that he had come to see his wife and child; that the deceased reminded him of the fact that he had sent him word to keep off the premises, and that the deceased was advancing towards him with a drawn hammer, and deceased's son-in-law, McCormick, was entering the room *Page 531 with a gun, when appellant, according to his contention, shot and killed deceased in self-defense.
The record contains thirteen bills of exception, but from the brief and argument of appellant's counsel we infer that the serious questions urged upon this appeal are relative to the action of the court in charging the jury on the law of provoking the difficulty, and the alleged refusal of the court to charge sufficiently the law applicable to the facts relative to his right to arm himself and seek an explanation from deceased. After a careful examination of the appellant's contention, we find ourselves not in accord therewith. We think the state's testimony, showing that the appellant, without invitation and with a drawn pistol, entered the residence and room where deceased was reading and informed deceased that he had heard of the threats made by deceased against him, was sufficient to call for a charge on provoking the difficulty, where self-defense was relied on by the appellant.
We are also not in accord with the appellant's contention to the effect that the court failed to charge sufficiently the law applicable to the facts relative to the right of appellant to arm himself, to seek an explanation of deceased, and to see his wife and child. We are of the opinion that the charge is not open to the objection and criticism urged against it, as the court, in his general charge, seems to have given sufficiently the law applicable to the facts and issues raised on this phase of the case. Presumably the court amended his charge to meet this objection.
In bill of exception No. 13 the appellant complains of the action of the court in permitting the witness Cora McClurkan to testify, over his objection, that on Tuesday morning prior to the killing that evening she saw her sister, wife of the appellant, write and place in the mail box a letter to Mrs. W. T. Goree, mother of the appellant. This bill fails to set out any facts from which we could infer or see that injury resulted to the appellant by reason of this testimony, and, as presented, shows no error.
Bill No. 14 complains of the action of the court in permitting the state to prove by the sheriff, Hudson, that while the appellant was under arrest on the night of the homicide, he, the witness, observed appellant's condition, as to whether he appeared worried, disturbed or composed. This bill fails to set out what the sheriff testified, if anything, relative to appellant's condition or appearance, and we are therefore unable to determine from the bill as presented whether any injury resulted to the *Page 532 appellant, or otherwise. In the absence of a showing to the contrary, the presumption prevails that the trial court ruled correctly.
Bill No. 15 complains of the action of the court in permitting the state to show by the witness Mrs. R. A. Sledge, sister of the deceased, that she lived with deceased in the state of California and that he was charged with no offense during said time. The objection urged to this testimony was that the rule had been invoked and said witness had heard the evidence introduced on the trial of the case before being called to testify. This court has repeatedly held that such matters are left largely to the discretion of the trial court, and in the absence of any abuse of said discretion, his action will not be reviewed. Furthermore, the bill, as presented, is insufficient to show any injury to the appellant by reason of the admission of this testimony.
After a careful examination of the entire record, and finding no reversible error therein, 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.