From conviction in the District Court of Taylor County of assault to murder, with punishment fixed at two years in the penitentiary, this appeal is taken.
The facts show without dispute that appellant shot a man named Gilliland in Taylor County, Texas. They also show that some time prior to said occurrence, Gilliland had shot at appellant. The State proved the prior shooting apparently as showing motive and as furnishing the basis of ill-will on the part of appellant in the instant occurrence. In developing its proof of said former difficulty the State had Gilliland and his wife to testify that appellant was at their home and used language to Mrs. Gilliland deemed insulting by her and her husband, and that this caused Gilliland to shoot at appellant. The testimony as to the language claimed by the State to have been used by appellant to Mrs. Gilliland on said occasion was objected to and the objection brought here in several bills of exception. We do not think the authorities cited by appellant in support of his objection apply, or that they are analogous. It was claimed by the State that at the time of the first shooting Gilliland overheard appellant address Mrs. Gilliland as sweetheart and that the language was offensive both to her and her husband, *Page 610 and that resentment of same caused the shooting. The objection seems to be largely based on the proposition that this was proof of an extraneous and disconnected offense committed by the appellant. We do not think so. The use of said language violated no law of this State, however objectionable and offensive it may have been to Mr. and Mrs. Gilliland, and we are unable to follow learned counsel for the appellant in their argument and citation of authorities against the acceptance of testimony of other offenses.
We do not perceive the materiality of the testimony complained of in appellant's bill of exceptions No. 2, and in consequence are unable to appraise the validity of the objection made.
Another bill sets forth appellant's objection to proof of the fact that while he was scuffling with parties who caught him as he pursued and shot at Gilliland, he said then that he was going to kill Gilliland. This was manifestly part of the res gestae. There is also complaint that the State was permitted to prove by another witness that he searched Gilliland a few minutes after the shooting and did not find upon him any weapon. The objection was that this was out of the presence and hearing of the appellant. There is nothing in the complaint; and this is true of the matter set out in the bill showing that one of appellant's character witnesses was asked upon cross-examination by the State if he had ever heard of appellant going to Gilliland's house and calling his wife sweetheart.
Appellant testified, and, among other things, stated that a Mrs. Johnson had communicated to him a threat made by Gilliland against his life. Appellant's counsel propounded to him the following query: "Now at the time you shot him the first time was he evidencing any intention to carry that threat into execution that he had made?" Objection to this by the State was sustained. We think the question called for an opinion of the witness and that he could have been asked to detail the facts as to what Gilliland was doing or saying at the time, and if it became manifest that he could not adequately detail the conduct of Gilliland, he might have permitted, after telling so much as he could, to express an opinion. By another bill it is made to appear that the State was allowed to ask appellant while on the witness stand in reference to the former difficulty: "Had you sent anybody to talk to Mr. Gilliland to try and reconcile *Page 611 the matter with him?" and to elicit the answer that he had not because they were both strangers and neither had any neighbors they could talk to. We do not think the bill presents any material ground for complaint.
The fact that after being shot by appellant Gilliland ran into a blacksmith shop and asked the proprietor if he had a gun, would seem impossible of any injury to appellant, even if immaterial to any issue in the case. The testimony on the whole case is contradictory as to the facts surrounding the transaction, but the matter seems to have been fairly submitted in the charge of the court to which no exceptions were taken, and the jury were within their province in arriving at the conclusion announced in their verdict.
Finding no error in the record, the judgment of the trial court will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.