Appellant was convicted of murder in the second degree, for the murder of J.W. Erkles. If the history of the facts and circumstances attending the homicide contained in the dying declarations are true, we think appellant was justly convicted of murder in the second degree, provided there was no reversible error or errors made by the court in admitting or rejecting evidence or instructions to the jury.
Counsel for appellant contend that there was error in admitting the statement of Mrs. Skaggs made to Mason Erkles, namely, that she knew that her husband (defendant) was going to kill deceased. This statement was not competent for any purpose; but when the opinion of this court in the Drake case, 29 Texas Court of Appeals 266[29 Tex. Crim. 266], was read to the court, the learned trial judge withdrew the statement from the consideration of the jury.
Appellant proposed to introduce in evidence the general reputation of the deceased, acquired after the homicide. Upon objection by the State; the proposed evidence was rejected. In this there was no error. Appellant proposed to prove by himself that he knew of acts of violence committed by deceased, which tended to prove deceased a man of violent and dangerous character. Upon objection made by the State, he was not permitted to do so. Under certain circumstances the rejection of such evidence would be reversible error (Childers v. The State, 30 Texas Court of Appeals 160[30 Tex. Crim. 160]; 2 Bishop's Criminal Procedure, sections 609, 610); but under the facts of this case such evidence would not have affected the result.
Deceased, in his dying declarations, states: "On this morning I found my fence cut. As this was done on several different occasions, and as I was told that Skaggs had acknowledged the same, I went on the road to his house to inquire into the matter. Previous to this I had been to his house a couple of times, but could not find him. As I say, on the road I met Skaggs, and inquired of him if he had cut my fence, and also his reasons. I sent Mason, my son, to repair the same Skaggs' reply was: 'Yes, damn it, I cut it, and will cut it again if you put it up.' I then slapped him with my open hand in the face, he (Skaggs) drawing his pistol, and striking me over the forehead, nearly knocking me off my horse. Further trouble was stopped at this time, and we rode along for a certain distance, say 300 or 400 yards, when the dispute about the fence was renewed. One word followed another, until he remarked, 'I have been carrying this weapon for the last year for you, and I might as well make use of it now as ever. I intend to kill you, anyhow.' The shooting then commenced, one striking me in front, and the other in the side. I made no resistance, being unarmed. After I was shot I asked Skaggs to take me home, which he refused. I tried to ride home, but fainted on *Page 565 the road, when Skaggs returned, and I asked him to let my family know where to find me. Skaggs must have done so, for it was not long before Mr. Simon and others came to my assistance. This is my dying statement, so help me God. [Signed] J.W. ERKLES."
After deceased slapped defendant, and defendant struck him over the forehead with his pistol, they rode along about 300 or 400 yards, when the dispute about the fence was renewed. One word followed another, until defendant remarked, "I have been carrying this weapon for the last year for you, and I might as well use it now. I intend to kill you anyhow," — "when the shooting commenced." If the jury believed these facts, evidently appellant was guilty of murder. If the jury did not believe them, defendant would have been acquitted, or found guilty of no greater degree of homicide than manslaughter. Deceased was not armed, and defendant knew this. He had thrown his last rock at appellant. They were both on horseback; and hence, though deceased was a violent and turbulent man, defendant, with pistol in hand, knew that he was in no possible danger.
The court submitted to the jury the rules contained in articles 571 and 572 of the Penal Code. Counsel for appellant contend that this was error; that the rule contained in article 572 should not have been charged in this case. We are of opinion that both articles should have been given in charge to the jury, because the jury may not have believed it was the purpose and intent of deceased to commit the offense of murder, or to inflict upon defendant such injury as might probably result in his death. We have examined, though not written upon, all the questions relied upon for a reversal of the judgment. We have found no such error as requires a reversal of the judgment, and it is affirmed.
Affirmed.
Davidson, J., absent.