Appellant files an able and exhaustive motion, reviewing most of the points decided by us in our original opinion. He again insists that the State's Attorney purposely and intentionally made mention of the fact that appellant had not taken the witness stand, and that this was such reference to the failure to testify on the part of appellant, as would *Page 65 call for a reversal. The incident occurred when the second witness for the appellant was on the stand testifying. He had given evidence at length and when nearing the end of his direct examination was asked the question by appellant's attorney if he knew the reputation of appellant for being a peaceable, law-abiding citizen. Bill of exceptions No. 1 reserving this point shows that the State's Attorney objected to this question on the ground that appellant had not taken the witness stand and therefore the testimony was not competent. The learned trial judge in his qualification to this bill certifies it as a fact that the attorney made this objection under the impression that the question asked of the witness related to the appellant's reputation for truth and veracity, and as soon as he learned that the question related to the reputation for peace and quietude the objection was withdrawn. A somewhat similar question arose in the case of Bosley v. State, 69 Tex. Crim. 100, 153 S.W. 880; also in Deal v. State, 99 Tex. Crim. 385, 269 S.W. 433, in which we seem to have held that the testimony not having closed at the time the statement complained of was made, it could not be held a reference to the failure of the defendant to testify. It can not be determined until the testimony has closed whether the accused is going to take the witness stand or not. We do not think the trial court erred under the facts in classifying the reference as incidental and in holding the matter not such as should have called for a new trial.
We are not inclined to attach that degree of importance to the matter complained of in bill of exceptions No. 2, which appellant ascribes to it. It appears that appellant's father, Ed Blackwell, had been tried for complicity in the same affair, and that a witness who gave testimony in the trial of the father, was testifying in the instant trial, and had made reference to something she had formerly stated. While appellant's attorney on cross-examination was having the witness repeat over and over that she had testified in this case before, it was suggested by private prosecution to the witness that she had testified only in the Ed Blackwell case. We think each counsel should abstain from interruption or suggestion while a witness is being examined by opposite counsel, but unless the result appear to be serious we would not hold it reversible error. Doubtless, in the matter under discussion, if the State's Attorney had waited until the cross-examination had been finished, and then called the attention of the witness to the fact that she was mistaken in thinking she had testified in this same case, she would have corrected the matter and practically the same result would have been obtained. *Page 66
That Ed Blackwell, father of appellant, was an active participant in the transaction in which this homicide took place, is apparent from the record. The homicide was at night, and deceased was shot with a small-caliber rifle, and apparently the fact that he was fatally wounded was not immediately ascertained. Later that night a party went back to the scene and looked for weapons. It was in evidence that following an intercation with Ed Blackwell, father of appellant, deceased ran away and made a circle and came back and the difficulty was renewed. The defense injected into this trial the proposition that deceased had a pistol. One of appellant's brothers, testifying in his behalf, stated that just before the shooting he saw a pistol in the hand of deceased. It was also in testimony that a pistol was found on the ground over or near which deceased went during the difficulty. The state introduced testimony strongly tending to show that the pistol found on the ground was not at the place where found until Ed Blackwell passed by, and that almost immediately after he went by said place the pistol was found there. Witnesses testified that the pistol found was not the pistol of deceased. We see no error in permitting a witness to testifying that he had seen Ed Blackwell with a pistol, the handle of which was similar to the one found on the ground. We think bill of exceptions No. 3 presenting complaint of the admission of this testimony shows no error.
Appellant renews at length his complaint of our decision of the point made in his bill of exceptions No. 5, viz.: That the court should have given a charge with special reference to his right of self-defense not being limited by the fact that appellant's father, Ed Blackwell, pursued the deceased in the difficulty. We find nothing in the court's charge limiting appellant's right of self-defense in any way. On the facts we find nothing therein to call for the charge deemed necessary by appellant in this regard. The testimony of appellant's father and brother appears. They were both eye witnesses. Appellant did not testify. According to the father and brother of appellant, the father went to the church where the homicide occurred, leaving appellant and his other sons at or near a well some distance from the church. When the father reached the church deceased came out and words ensued between him and appellant's father, the latter claiming that deceased had a knife in his hand. Deceased fled around the church, appellant's father pursuing him. They went practically around the church when, according to the father's testimony, deceased got so far ahead of him that he ceased his pursuit and started back out toward where appellant and his brothers were. Other parties had come out of *Page 67 the church. Appellant's father began to talk to them. About this time he says deceased came up with an opened knife in his hand and began advancing upon him. Appellant and his brothers had approached the church. One of appellant's brothers handed to their father a wagon spoke with which he struck the arm of deceased and apparently knocked the knife out of his hand. He then struck deceased several blows with his fist, and the latter reached for a rock and with it struck appellant's father. This is the substance of the testimony of appellant's brother and father. At about this juncture appellant, standing some steps away, fired with a 22-caliber rifle, striking deceased. We see nothing in these facts demanding of the court any charge on the right of the father of appellant to pursue deceased. Appellant does not testify or seem to predicate his killing of deceased upon the fact that his father pursued deceased around the house. Nor does the testimony of any other witness suggest that that fact in anywise affected appellant. The pursuit of deceased by appellant's father had ended, and another attack by deceased upon the father had taken place and that had ended, and a subsequent attack upon said father with a rock had taken place, — according to the testimony of appellant's witnesses, — before the shooting took place. We do not regard the bill of exceptions as presenting any serious complaint.
Appellant again insists that the court should have charged on his right to defend himself. While the evidence suggests that the whole difficulty grew out of animosity and feeling between appellant and deceased some time prior to the occurrence at the church on the night in question, we find nothing in the evidence suggesting that deceased was making any attack upon appellant which caused or contributed in any way to the shooting. We have gone over the entire contentions made by appellant but think same to be without merit.
The motion for rehearing will be overruled.
Overruled.
Presiding Judge Morrow not sitting.