The offense is murder; punishment fixed at confinement in the penitentiary for a period of five years.
Appellant, using a pistol, shot and killed Will Nash. It was shown by the physician who attended the deceased that six bullets entered his limbs and body from the rear, four of them entering his back and one entering each arm.
The tragedy occurred upon one of the streets of Dallas. According to the testimony of eye-witnesses for the State, the deceased, after walking out of a cafe, directed his steps slowly towards the edge of the sidewalk, facing the street and holding his head down. Appellant approached at a rapid gait with his pistol in his hand raised in a shooting position. The deceased looked up, saw the appellant and ran. No pistol was in the hand of the deceased at the time. Appellant, at a few feet distant, pursued the deceased, firing as he went. At some time during his retreat, which was around an automobile, the deceased got his pistol in his hand but without raising it, sank down upon his back.
The deceased was a brother of the appellant's wife and was under a charge of murder for killing the appellant's son. On the occasion of the homicide, appellant was in the city of Dallas for the purpose of having a conference with the prosecuting attorneys touching the preparation of the case against the deceased for trial. According to the testimony of appellant, while walking upon the street with his head down, he noticed a man about six feet from him making a rapid movement at the waistband of his clothes. Raising his eyes, he recognized the deceased and saw him drawing a pistol. Appellant then got out his pistol. The deceased fired and ran to the edge of the street. Appellant thinking he was trying to get behind *Page 379 an automobile, which was nearby, shot at the deceased. Quoting him, appellant said:
"I shot one time with my gun just as fast as I could. I don't know where I shot him, I don't know whether I ever hit him or not."
Appellant said that the meeting was unexpected, and that he shot in order to protect his life; that he became excited and frightened upon meeting Nash who was his enemy. He had been accosted by parties on the road some days before and recognized one of them as the deceased. Fearing harm, he armed himself, and thus accounted for the possession of the pistol at the time of the homicide. The deceased was also armed, and there was found at the time he fell a pistol in his hand. One of the cartridges was empty. The other chambers were loaded. The pistol was jammed by a cartridge, and the cylinder would not revolve.
The State introduced the blue ducking coat worn by the deceased, which was punctured with six bullet holes corresponding with those upon the body and arms of the deceased. The testimony introduced by the State identified the coat and accounted for its possession in the interim between the homicide and the trial. It was proved by the physician that the wounds on the deceased and the punctures in the coat corresponded.
In a number of bills of exceptions complaint is made of this procedure. Exceptions were made and preserved at the time. The rule touching the receipt in evidence of the garments worn by the deceased is well understood. Ordinarily they are receivable in evidence when serving to establish some circumstance leading to the identity of the deceased or the cause or manner of the injury, (Underhill on Crim. Ev., 3rd Ed., Sec. 495; Campbell v. State, 8 Texas Crim. App. 84; McCue v. State, 75 Tex. Crim. 137; Amer. Eng. Ann. Cas., 1918C, 674; Middleton v. State, 86 Tex.Crim. Rep.), or to assist the jury in solving some material matter which is either controverted or in doubt. Underhil on Crim. Ev., 3rd., Sec. 101, note 89; Adams v. State, 48 Tex.Crim. Rep.; Boyd v. State, 50 Tex. Crim. 138; Ozark v. State, 51 Tex.Crim. Rep.. Otherwise the admission of the clothing of the deceased in evidence is improper. Underhill on Crim. Ev., 3rd Ed., p. 105, notes 2, 3, and 4; also Dozier v. State, 82 Tex.Crim. Rep.; White v. State, 83 Tex.Crim. Rep.. Upon the record in the present case we have observed no legal reason for receiving the testimony mentioned. See Cole v. State, 45 Tex. Crim. 232; and other cases listed by Mr. Branch in his Ann. Texas P. C., 1855, subdivision 4.
The reason for rejecting this character of evidence is that without throwing light upon the merits of the controversy, it tends to inflame the minds of the jury. The transgression of the rule against *Page 380 its admission, however, is not ordinarily considered error justifying a reversal where the evidence sustains the conviction and the penalty assessed gives no indication that it may have been affected by passion or prejudice on the part of the jury. So far as we are aware, in no case where the evidence of guilt is sufficient and the lowest penalty assessed has the receipt of such evidence worked a reversal. The case of Long v. State, 48 Tex.Crim. Rep., is an illustration. See also Hughes v. State, 252 S.W. Rep. 774.
In Bill No. 6 complaint is made of alleged improper argument. From the bill, as qualified, it is shown that it was in evidence that the deceased had killed the son of the appellant and was charged with murder. No details were in evidence. Counsel for the appellant, in his argument, told the jury that the deceased had murdered the son of the appellant in cold blood. Objection to this was sustained, but the matter was pressed. Counsel for the appellant said to the jury that the deceased, Will Nash, was a wilful and deliberate murderer and insisted that the fact that he had murdered the appellant's son should excuse the appellant of the homicide. Replying to these remarks. State's counsel said to the jury that there were circumstances which go to show that the killing of the appellant's son was not an assassination but that the homicide was brought about by the misconduct of the son of the appellant's son towards the wife and daughter of the deceased, and that when State's counsel attempted to prove the cause of the killing and the circumstances attending it, he was prevented from doing so by the objection of the appellant's counsel. Of course, these remarks were out of the record and improper, but we are not able to say that the learned trial judge was wrong in his qualification of the bill to the effect that the impropriety of the argument of the State's counsel was not available to the appellant for the reason that by the argument of his counsel, he went out of the record and made unauthorized statements to the jury to which the remarks of State's counsel complained of were not an inapt reply. Mr. Branch, in his Ann. Texas P. C., sec. 363, cites numerous decisions of this court holding that the accused is not entitled to complain of improper argument of State's counsel which is occasioned and justified by the argument of his attorney. Among these are Baker v. State, 4 Texas Crim. App. 229. The court, of his own motion, would have been justified in withdrawing the improper remarks, but appellant's counsel having by his conduct invited the response made by State's counsel, the matter cannot be made a ground for reversal.
Bill No. 7 deals with some mutual charges of unprofessional conduct upon the part of the attorneys. It seems from the bill, as qualified, that counsel for the appellant opened the subject by uncomplimentary remarks concerning State's counsel and that he in kind replied. The court, in his qualification, states that the reply *Page 381 was justified and provoked. It seems from the bill that the whole matter was addressed to the personal characteristics of the attorneys rather than to any pertinent issue in the case. The bill shows no reversible error.
In Bill No. 9 complaint is made of the refusal of the court to give Special Charge No. 3 upon the law of manslaughter. The requested charge is too long to quote. It impresses us as argumentative and upon the weight of the evidence and violative of the rule against grouping facts. Whatever may have been the merits of the charge, there was no omission in the main charge of the court which the special charge could have supplied.
After instructing the jury that if they believed beyond a reasonable doubt that the appellant was guilty of some grade of unlawful homicide and entertained a reasonable doubt as between murder and manslaughter it should be resolved in favor of the appellant, the jury was instructed upon the elements of manslaughter in a charge which in no wise departed from the approved forms; and in a paragraph submitting the matter to the jury, the court, as it occurs to us, did all that the facts demanded. He told the jury that although the law provided that the provocation causing sudden passion must arise at the time of the killing, it was their duty, in determining the adequacy of the provocation, to consider in connection therewith all the facts and circumstances in evidence in the case and anything that the deceased did at the time of the killing or immediately preceding it. In the light of the charge as given upon the subject of manslaughter, the refusal of Special Charge No. 3 was, in our judgment, not erroneous. The charge itself was innacurate, and the record presents no facts demanding a further charge upon the law of manslaughter in that particular.
The refusal of Special Charge No. 6 was proper inasmuch as the jury was adequately instructed in the main charge embodying the law of self-defense that the matters must be viewed from the standpoint of the appellant.
In Special Charge No. 7 appellant sought to have the jury told in substance that if they considered the fact that the deceased had killed the son of the appellant and that he was aiding in the prosecution, they would further consider whether after the death of his son, appellant at night time saw persons whom he believed intended to waylay him, among whom he recognized the deceased, and that they should further consider whether if at the time of the homicide the deceased by some act done, indicated that he was about to assault the appellant, he would be justified, provided, as viewed from his standpoint, it appears necessary to take the life of the deceased, and that the danger need not be real. With the exception of that part of the requested charge which refers to the alleged effort to waylay the appellant on some former occasion, the *Page 382 special charge would add nothing to the corresponding paragraph of the main charge in which the appellant's defensive theory was, in our judgment, adequately submitted to the jury. The special charge, moreover, was subject to the objection that it singled out and instructed the jury upon particular facts and was in its nature argumentative in seeking to group certain evidence. Pinkerton v. State, 249 S.W. Rep. 1066; Ray v. State, 88 Tex.Crim. Rep.. In Ency. of Pleading and Practice, Vol. 11, p. 185, it is said:
"So, in framing instructions, it is very generally regarded as improper for the trial court to single out and give undue prominence to isolated portions of the evidence."
"Such an instruction is calculated to induce the jury to give undue weight to the evidence thus brought to their notice, and an instruction vicious in this respect may properly be refused."
In his brief the appellant complains of the refusal of the court to give a special charge instructing the jury upon the presumption arising from the use of a deadly weapon by the deceased. We fail to find any exception to the failure to embrace this matter in the main charge; nor do we find that the refusal of the special charge upon the subject was made the subject of exception. Neither do we find that such a charge was presented to the trial judge at the time required by law. See Linder v. State, 250 S.W. Rep. 706, and cases therein cited.
Observing no error warranting a reversal, the judgment is affirmed.
Affirmed.