Appellant prosecutes this appeal from a conviction of murder in the first degree, with the death penalty assessed.
1. When the cause was called for trial, he applied for a change of venue, based upon both grounds mentioned in the statute. To this application was attached an exhibit—a newspaper account of the actions of a mob which sought to take defendant from custody for the purpose of hanging him. The controverting affidavit filed by the State was sufficient, both *635as to form and substance; wherefore the court did not err in overruling defendant’s exceptions to the same. Willson’s Crim. Stats., secs. 2209, 2210. The application was refused, and defendant excepted, but the evidence adduced on the trial of the issues involved in the motion is not incorporated in the bill of exceptions; and it is therefore insufficient to authorize, on appeal, a revision of this ruling of the court. Code Crim. Proc., art. 584; Blackwell v. The State, 29 Texas Ct. App., 194; Lacy v. The State, 30 Texas Ct. App., 119. Attaching the newspaper account to the application as an exhibit does not authorize its consideration as evidence in support of such application. Lacy v. The State, Id.
2. Defendant sought a continuance; first, because there existed a prejudice so great and a combination of influential persons so strong, that he could not obtain a fair and impartial trial in Dallas County; and second, for the testimony of one Brown, by whom he “ expected to prove, that a few nights prior to the homicide several policemen with others came to his house in the city of Dallas, and then and there talked with said Brown, and inquired of said witness the whereabouts of defendant, and said they proposed to arrest defendant, and that he would then be killed by some man who they then named to said witness.” The application fails to show diligence to secure the attendance of the witness. Defendant was served with a copy of the indictment on June 9, and his trial occurred July 14 following. The process for the witness is not attached to the motion, nor is it inserted in the bill of exceptions, and neither states the date of its issuance, nor is it shown that further process was not required. But if diligence be conceded, the allegations are too vague and indefinite. Neither the name of defendant’s proposed slayer, nor that of any of the parties who visited his house, is given. Nor would the testimony as set out be admissible. General statements will not suffice, nor will mere inferences or indefinite allegations. The facts expected to be proved must be stated definitely. Miller v. The State (Texas Crim. App.), 20 S. W. Rep., 1103; Williams v. The State, 10 Texas Ct. App., 114; Grissom v. The State, 8 Texas Ct. App., 386; Thomas v. The State, 17 Texas Ct. App., 437; Mitchell v. The State, 1 Texas Ct. App., 195.
3. This homicide occurred on May 24. The State, over defendant’s objection, was permitted to prove that an affidavit was prepared on May 23, and filed on May 25, charging defendant with the offense of slander; that the acting chief of police was informed of that fact; that he instructed the police force to arrest defendant; that in obedience to this order he was arrested, and this constituted the only authority for his arrest. This testimony was objected to because irrelevant and incompetent. The effect of this testimony was to show the arrest without warrant, and thus it tended to maintain the defensive theory of illegal arrest, and for this purpose was legitimate, and did not, because offered by the prosecution, become incompetent.
*6364. The affidavit charging defendant with the offense of slander was also admitted in evidence. The slander charged imputed to the female mentioned a want of chastity of a most revolting nature. The contents were hardly germane to any issue in the case, in the absence of evidence bringing home knowledge to defendant of the existence of the affidavit, and we are not prepared to say that it may not have prejudiced defendant in the minds of the jury. The court, however, subsequently withdrew the affidavit from the consideration of the jury, and instructed them verbally, as well as in writing, to disregard it as evidence in the case.
The effect of withdrawing and excluding testimony erroneously admitted, which was or may have been prejudicial in its nature and tendency, has been the subject of much discussion in the courts, and the decisions are not harmonious upon the question. The weight of authority, however, seems to be that such withdrawal cures the error, and such has been the opinion entertained by this court. Sutton v. The State, 2 Texas Ct. App., 342; Marshall v. The State, 5 Texas Ct. App., 273; Phillips v. The State, 22 Texas Ct. App., 139; Nalley v. The State, 28 Texas Ct. App., 387. See also, State v. Fowler, 13 R. I., 661; Thomp. Trials, secs. 715, 722, 723, and notes.
In Sutton’s case, supra, it was said: “ But conceding the court erred in admitting this testimony, the error, if in fact any was committed, was corrected by the court afterwards withdrawing it from the considertion of the jury.” This ruling has been approved in subsequent cases, and the doctrine uniformly upheld, that when improper evidence has been admitted over objection, it is the proper practice, and may become the duty of the court, to exclude or withdraw it from the jury, and instruct them to disregard it in finding their verdict. Authorities above cited; Willson’s Crim. Stats., sec. 2514.
To hold otherwise would be to sanction the doctrine that the court could not cure any error into which it may have fallen by mistake or inadvertence, and thus render it helpless to rectify errors committed, and the trial a mockery and a farce. We can not sanction such a doctrine. It is not intended here to hold that cases may not arise in which the withdrawal of testimony would not cure the error committed in admitting same; for it may occur that such evidence was of such a prejudicial character as to so influence the jury against the defendant that he would be deprived of a fair and impartial trial. We do not think, however, this evidence of that character.
5. The State proved by Arnold, that about three weeks prior to the killing, defendant, speaking of his previous arrests by deceased and other policemen, said “ that every officer who gave him bond or took his recognizance, it was all right, and he would be there the next morning; but if he would not be allowed to give bond, and had a gun with him, he would *637be damned if the fight didn’t begin right there. He made similar statements to me repeatedly in the past year.” Objections were urged, that this testimony was irrelevant, showed no malice towards deceased, and tended to confuse and mislead the jury. Deceased was a policeman, was specially mentioned by defendant in connection with his previous arrests and conditional threats, was connected with the arrest of defendant just preceding the homicide, and was seeking his arrest at the time he was shot and killed. The evidence was directly pertinent to the issue of malice and motive. Campbell v. The State, 15 Texas Ct. App., 506; McKinney v. The State, 8 Texas Ct. App., 626; Hubby v. The State, Id., 597; Willson’s Crim. Stats., secs. 1043, 1044.
6. While under arrest, and within fifteen minutes after the homicide, being informed of Brewer’s death, defendant told some one in the crowd near him to “ Tell Sam Miller to come down here; by God, I have got my man!” It was objected, that defendant was under arrest, was not cautioned or warned, and was in fear of his life. The testimony was res gestae and properly admitted. Lewis v. The State, 29 Texas Ct. App., 201; Fulcher v. The State, 28 Texas Ct. App., 465; Castillo v. The State, ante, p. 145; Powers v. The State, 23 Texas Ct. App., 42.
7. Error is assigned because the court charged the jury as to the law applicable to murder in the first and second degrees, and refused to confine their consideration of the case to the issues of self-defense and manslaughter. In this connection the evidence discloses that defendant, about three weeks prior to the homicide, and on several previous occasions, alluding to his “many arrests,” said that deceased and other policemen had given him bail, but if, upon future arrests, they should refuse to take his bond or recognizance, he would have his pistol and “ he would be damned if a fight did not commence, and he would never be carried to the jail alive.” When arrested at the railroad depot, shortly before the homicide, he assented and willingly accompanied the officers to Lacy’s saloon, on the opposite side of the street. Deceased participated in this arrest, but did not accompany the parties to the saloon, and was not further connected with his detention. While in the saloon, Beard, one of the policemen making the arrest, having telephoned for the patrol wagon, refused defendant’s request for bail because he “ did not know exactly what the charge against him was, and Ed Cornwell (chief of police) had told him to bring him to the police station,” and also said to defendant, “ Go and see Ed, and it will be all right.”
Anticipating no trouble, Beard left the defendant in the saloon, in the custody of another policeman, Brandenberg, who, upon two similar requests, refused to release defendant on bond. Upon the last refusal, and while Brandenberg was engaged in conversation with another party, defendant drew his pistol, leveled it at the officer’s face, remarking as he did so, “By God, here’s my bond,” or “By God, I will have bond,” *638and jumped or backed out of one door as the officer went out of another. Just as they emerged from the doors, defendant shot at Brandenberg, who then drew his pistol. Defendant began retreating and firing, and as he fired the third shot, Brandenberg fired at him. After the firing began, deceased, who was standing some distance away, started in pursuit of defendant for the purpose of arresting him; and as he approached, defendant turned upon, and, supporting his right arm with his left, fired at and killed him. He then continued to retreat and shoot at Branden-berg until his pistol was entirely discharged. In a few moments he was-arrested, and from him was taken a pistol and twenty-two cartrides, with six of which he was seeking to reload his pistol. Deceased’s pistol was-discharged as he fell or was falling, and the evidence is conflicting as to whether he fired at defendant prior- to being shot. Shortly after his arrest, upon being informed of Brewer’s death, defendant said to a bystander, “Tell Sam Miller to come down here; by God, I have got my man! ” Sam Miller and defendant are brothers. The evening train had-just arrived and was at the depot. The street was filled with people, and ■the firing occurred near the depot, one ball striking the engine.
Where a party is illegally detained he may, in a proper manner, regain-his liberty, and a killing under such circumstances may be reduced to manslaughter, or self-defense. But if the killing be for any other cause, as ill-will or malice, it will be murder; or if more force than necessary be used, or a deadly weapon be resorted to unnecessarily in the first instance by the arrested party, this would constitute him the aggressor. Code Crim. Proc., arts. 83, 84; Stockton v. The State, 25 Texas, 776. If his intention was to kill or do serious bodily harm, the killing would be upon express malice. He is not required to submit to illegal arrest, but may demand the warrant or proper authority, and in its absence repel force by force, provided the force does not exceed prevention and defense. Such force, however, can not be disproportionate to the injury. The right to repel force by force continues until the person attempting the illegal arrest presses forward with such violence that the person defending is obliged to choose between three things; to retreat, to surrender, or the death of his adversary. If the force used be disproportionate to the injury about to be inflicted, self-defense is eliminated; and if it be attributed to any other cause than resistance to the illegal arrest, such arrest can not be looked to as a mitigating circumstance. It has been said that “ In such cases it may be well deserving of consideration whether the first inquiry ought not to be whether the act done was caused by illegal apprehension. If the act done arose from other causes, and had no reference to the illegal arrest—as if it arose from previous ill-will—it would seem that the illegality of the arrest ought not to be taken into consideration, because it was not the cause of the act, and therefore could not be truly said to have offered any provocation for it.” 1 Am. and *639Eng. Encyc. of Law, 573, and notes; see, also, Ex Parte Sherwood, 29 Texas Ct. App., 334; Miller v. The State (Texas Crim. App.), 20 S. W. Rep., 1103.
The question at last is, what cause, reason, or motive actuated the defendant in committing the homicide? It is the settled law of this State, that in arriving at a correct conclusion in homicide cases, the killing should be viewed from the defendant’s standpoint; that is, to ascertain as nearly as possible, from the evidence, the reasons and motives which moved or induced the accused to do the killing. It has been held, that an unlawful arrest is esteemed, in law, a great provocation. If it be conceded that such provocation constitutes “adequate cause,” under our statute, then, in order to reduce the killing to manslaughter, “sudden passion ” must have existed in the mind of the slayer at the time of the homicide; otherwise, the killing would be murder. Massie v. The State, 30 Texas Ct. App., 64; Ex Parte Jones, ante, p. 422; Ex Parte Sherwood, 29 Texas Ct. App., 334; Miller v. The State, 20 S. W. Rep., 1103. Such provocation, in the absence of “ sudden passion,” may become evidence of a most cogent character and force, showing malice. (Same authorities.) Again, if there exists a provocation unknown to the accused at the time of the homicide, this would not suffice to reduce the killing below murder. There must be a concurrence of ‘ ‘ adequate cause ’ ’ and “ sudden passion,” as defined by our statute, to reduce a felonious homicide to the degree of manslaughter.
As was said by Judge Hurt in Dyson’s case, 14 Texas Court of Appeals, 454: “ When the prisoners have been sometime in custody, and the informality of the warrant under which they were held was unknown to them, and they deliberately planned and carried out an attack which resulted in the death of one of the officers, this was held murder, and not manslaughter.” And again, in Sherwood’s case: “ Because without such knowledge the provocation could have no effect upon him whatever, and hence without such knowledge it is absolutely certain that his passions, if any, were not caused by this provocation.” 29 Texas Ct. App., 334. This court has further held, that where a party, “ expecting an attempt will be made to arrest him illegally, deliberately prepares arms for immediate use, and calmly and deliberately determines to kill the person attempting the illegal arrest, and upon his appearance for that purpose does kill him, such killing would be upon express malice; and to hold the slayer guilty upon express malice would not only be law, but common sense and justice” Miller v. The State, 20 S. W. Rep., 1103. Illegal or attempted illegal arrest, unlawful restraint of liberty, and a wanton, unnecessary, and unjustifiable exercise of legal power in making arrest, stand upon the same legal plane. Ex Parte Sherwood, 29 Texas Ct. App., 334; Miller v. The State, 20 S. W. Rep., 1103; Horr. & T. Cas. Self-Def.,715.
*640In this case defendant had been 11 many times” arrested by deceased and other policemen of Dallas, had always submitted, because bail was accorded, and would do so again upon the same conditions, but should this be refused, he had deliberately resolved, and so notified the officer, to bring on a deadly conflict, and one in which his own or the life of the officer was to be sacrificed. In this connection, and upon this stated condition, the life of deceased had been threatened by defendant; and when the opportunity came he was armed, and brought about the conflict. The drawing and presenting his pistol was an unnecessary and an illegal act, and disclosed his purpose to execute his previous threat. He was in no danger from the officers, or any other source, and could have secured bail by accompanying the officers to the police station. Deceased was not connected with the difficulty in the saloon, and was seeking defendant’s arrest when shot and killed by him. Defendant was violating the law of the State in carrying the pistol, presenting it, and shooting at Brandenberg, as well as subsequently firing it in the street; and he was aware that it was incumbent upon deceased, as an officer, to arrest him for these offenses, and a duty which if left unperformed would subject the officer to a heavy penalty and a severe punishment.
But there seems to have been another reason operating upon defendant’s mind, inciting him to take the life of Brewer, as evidenced by the deliberate manner of shooting him, as well as the message sent his brother immediately after the homicide. That message conveys the idea that deceased had been the subject of discussion between the brothers; that they understood each other in regard to defendant’s feelings and intentions toward deceased; and the inference is strong, if not conclusive, that the brother would know, without mentioning his name, that deceased was the “man” referred to in the message. The evidence does not sustain the position that defendant knew he was illegally arrested, nor was that matter ever referred to by him. He voluntarily and willingly submitted to the arrest, said it was “all right,” and at no time questioned the officers' right to make the arrest, nor demanded their authority for doing so, but only claimed the right to give bond, and thus not only recognized their right to make the arrest, but manifested as well his belief that his arrest was legal. His mind was unmoved by reason of the arrest. He believed it legal, and willingly remained in custody for ten or fifteen minutes, and until bail was refused the third time; and reviewing his acts in the light of all the facts, he did so, waiting for the opportune moment to shoot, either because he was denied bail on the spot, at the instant, ar 1 on the terms fixed by himself (not because he was refused bail at all events), or because there existed in his mind a purpose to kill, formed prior to the arrest, as indicated by facts anterior to, occurring at the time of, and subsequent to, the homicide. Being the aggressor, he brought on a conflict in which he knew or believed life must be sacrificed, *641and from that instant till the firing ceased his attitude in the difficulty never changed.
Viewing this transaction from the defendant’s standpoint, as evinced by his acts and declarations, it appears that he had frequently been arrested by deceased and other policemen; that he had heretofore been admitted to bail; that he anticipated refusal of bail, if again arrested; that he threatened to be armed, and bring on a combat with deadly weapons, in case he was not permitted to give bond when arrested; that the legality or illegality of the anticipated arrest had no connection with his threats; that he assented to his arrest, and did not inquire the cause, .or demand the authority of the officers making it; that he deliberately armed himself with a heavy-caliber pistol, as he had threatened; that he also secured and carried about his person twenty-two extra cartridges; that thus armed, he went to the place at which deceased and the other policemen were on duty on the occasion of the homicide; that he was immediately arrested by the policemen; that he demanded and was refused bail shortly after his arrest; that he drew his pistol and fired at Brandenberg when bail was refused; that he turned from firing at Brandenberg and fired at deceased; that he was deliberate in his manner of shooting at and killing deceased; that he sent the message, “ Tell Sam Miller to come down here; by God, I have got my man! ” to his brother just after the homicide; that he had prior unkind feelings and ill-will towards deceased; and that he was reckless and desperate of human life in his conduct throughout the difficulty. The court, therefore, did not err in charging the law applicable to murder of both degrees, and in refusing to confine and restrict the deliberations of the jury to manslaughter and self-defense.
We deem it unnecessary to discuss the other questions relating to the charge. Under the principles announced in the cases of Ex Parte Sherwood and Miller v. The State, above cited, we are of opinion that the judgment should be affirmed, and it is so ordered.
Affirmed.
Simkins, J., concurs. Hurt, P. J., dissents.