
    HICKEY v. STATE.
    (No. 9025.)
    (Court of Criminal Appeals of Texas.
    Feb. 4, 1925.
    Rehearing Denied April 8, 1925.)
    1. Jury <§=131 (4)— Refusal to permit question to juror as to his admitted opinion andi dismissal of juror thereafter held not error.
    Refusal to permit counsel for accused to question juror as to whether his admittted opinion was for or against defense and subsequent excusing of such juror by the trial court, when juror admitted that it would take evidence to remove the opinion, held not error.
    2. Jury <§=>103(6) — Objections to juror having opinion which could be laid! aside held not well founded.
    Objections to a jtiror, who admitted he had an opinion, but stated it was not fixed, and that if taken on jury, he would lay opinion aside and would give accused a fair and impartial trial, held not well founded.
    3. Homicide <@=>164 — Testimony that deceased was one-legged man held not error, especially in view of reception of other testimony to same effect.
    In prosecution for murder, reception of testimony as to fact that deceased was one-legged man held not error, especially in view of reception of other evidence without objection that deceased had a cork leg, and that he had only one leg.
    4. Criminal law <@=5I7(I) — That deceased did not die until after accused’s statement held not to affect admissibility of statement.
    That deceased did not die until after accused’s statement concerning assault was made held not to affect admissibility of statement voluntarily made.
    5. Witnesses <§=376 — Witness’ prejudice to accused being shewn, state was entitled to show prejudice arose from assault on deceased.
    Witness’ prejudice to accused being shown on his examination by defendant, state was entitled on redirect examination to show prejudice arose from his observation of accused’s assault on deceased from behind. •
    6. Criminal law <§=3683(1)— Fact of accused’s separation from wife held properly received in rebuttal.
    In'murder prosecution, where accused testified he was working to make a living for his family at the time of the assault on deceased, fact of accused’s separation from his wife held properly received in rebuttal.
    7. Criminal law <§=>829 (I) — Refusal to give requested charges held not error when charge full and adequate.
    Refusal to give requested charges held not error when charge given presented lawfully and adequately.
    On Motion for Rehearing.
    8. Criminal law <©=>683(I) — Testimony as to accused’s statements of leaving “his folks” held admissible in rebuttal as referring to his family.
    Where accused contended he tried to avoid the difficulty with deceased because he had a family to support, testimony as to accused’s statements that he and “his folks” could not get along, and that he had left them, held admissible in rebuttal as, referring to ’accused’s family, especially in absence of objection, because not shown to refer to wife and children.
    9. Criminal law <§=363 — What statement against interest by participant is admissible as res gestae stated:
    What is said against interest by the participants in a transaction, so closely related thereto in point of time or by reason of stress of mind or excitement as to make it appear that the facts themselves speak through the mouths of the parties, is admissible as res gestae.
    10. Criminal law <§=>723(1) — State’s attorney paraphrasing of poem held not ground for reversal.
    In prosecution for murder state’s attorney paraphrasing of poem so as to state that a one-legged soldier of the Legion lay dying in Texas on San Jacinto day, held not ground for reversal.
    11. Criminal law <§=>1111 (3) — Qualified bill of exceptions accepted by accused binds Court of Criminal Appeals.
    Bill of exceptions accepted by accused, with court’s qualification that argument was in reply to that of accused’s counsel, binds Court of Criminal Appeals.
    Appeal from District Court, Stephens Comity; C. O. Hamlin, Judge.
    W. A, Hickey was convicted of murder, and he appeals.
    Affirmed.
    J. G. Bishop, of Gorman, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst.1 State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of SteiJhens county of murder, and his punishment fixed at 20 years in the penitentiary.

Appellant and deceased were -working together upon some pipe in the oil field. Appellant took offense at a remark made by deceased, or perhaps at an exhibition of greater strength on the part of the latter. Axipellant was on a load of pipe, and deceased was on the ground. Following some insulting language of appellant, deceased pulled off his gloves and told appellant that he would whip him if he would get down from the wagon. He declined to get down. Deceased put on his gloves and went on with his work, and appellant secured a piece of lumber used in holding the pipe on the wagon and struck deceased on the head with said stick knocking him down. Appellant then jumped from the wagon and struck deceased again on the side of the head, crushing his skull and causing his death. Two doctors who examined deceased said the blow on the side of his head was fatal, and each of them testified that the piece of timber with which the injury was inflicted was an instrument with which a deadly blow could be inflicted when handled as this one was. Appellant testified that deceased used insulting language toward his wife and female relatives following their quarrel at the wagon, and that because of his anger and resentment toward deceased for the use of such language, he struck him with the piece of timber. He said that deceased was making motions toward his pocket at the time he struck him, and fear that deceased was going to attack him also operated on his mind.

There are many bills of exception, all of which have been carefully examined and considered. In his brief appellant has presented certain of these, which will be discussed by us.

In the formation of the jury, appellant asked Juror Clements if he had formed an opinion, and the reply was that he had formed one from what he had read. Appellant’s counsel asked him whether it was for or against the defendant, and, upon objection made by the state, the trial judge held this an "improper question. Appellant’s proposition is that he would be unable to know whether to accept the juror without interrogating him as to whether his opinion was for or against him. The court declined to permit this question. The juror was further interrogated, and upon his stating that it would take evidence to remove the opinion, he was excused by the court. Appellant’s bill of exceptions No. 2 presents his objection to this action of the court. We perceive no error.

There is further complaint of the fact that Mr. Webb, one of the jurors, stated that he had somewhat of an opinion, but that lie would not permit it to influence him; that he had no fixed opinion; that if taken on the jury he would lay the opinion aside; that he would give the defendant a fair and impartial trial. We do not believe appellant’s objections to this juror well founded.

There is an exception because a witness named Mobley was permitted to testify that deceased was a one-legged man. The matter presents no error, and especially so in view of the fact that other witnesses had testified without objection that deceased had a cork leg, and that he had only one leg.

Immediately after the difficulty appellant was arrested and taken to the office of the prosecuting attorney, where he made a written • statement concerning the matter. It is in evidence that he said he wanted to make the statement. The introduction of this statement was iibjected to on the ground that at the time it was taken deceased was still living. Appellant seems to labor under the impression that because he was not then charged with the murder of deceased, the statement was inadmissible. We regret we cannot agree with the soundness of the proposition. O’Connell v. State, 10 Tex. App. 567; Neiderluck v. State, 21 Tex. App. 320, 17 S. W. 467; Davis v. State, 19 Tex. App. 201. The warning was properly given, and the matter about which the statement was made was the assault made by appellant upon the injured party, and the fact that he did not die until after the statement was made would not affect its admissibility.

Appellant’s counsel having drawn, out of an eyewitness to the transaction, who had testified for the state, the fact that said witness was prejudiced against appellant, we think it permissible for the state to ask the witness upon redirect examination if he had prejudice against appellant growing out of any other transaction except that he witnessed the manner and character of this assault, and to permit the witness to^ explain that the only prejudice he had against appellant was that which arose from seeing him strike deceased from behind while the latter was at work.

Appellant took the stand as a witness in his own behalf, and repeatedly asserted that he was working trying to make a living for his family at the time of the assault. We deem it no error for the trial court to permit the state to prove as rebutting this that appellant and his wife were separated.

The remainder of appellant’s bills of exception are directed at the refusal of special charges, 28 of which were requested. We cannot take time or space to discuss these various special charges. The charge given to the jury by the court fully and adequately presented the law of murder, of manslaughter, of aggravated assault, and of self-defense. While it is true that the deadly assault was made with a piece of timber, the uncontradicted testimony showed that it was a deadly weapon, and there was no proof offered by appellant to the contrary. The complaints directed at the argument of the state’s attorney are believed to be without merit.

Finding no error in the record, the1 judgment of the trial court will be affirmed.

On Motion for Rehearing.

In his motion appellant stresses his objection to the testimony of Pitman that appellant told him he had left his family for four or more years prior to the conversation, and he insists that such evidence was incompetent and hurtful. We have reviewed the matter in the light of this insistence, and the qualification affixed by the court to bill of exceptions No. 8 presenting this complaint. Appellant, .on the witness stand,- contended that he tried to avoid the fatal difficulty with deceased' and ascribed this action of his partly to the fact that he had a family to support and, in effect, that he could not afford to have trouble. This would seem to be reasonable and commendable, if true, and because of.this the state was allowed in rebuttal to prove by Pitman certain statements of appellant regarding his relation with his family. Appellant now makes the point that the language used by Pitman, did not name appellants wife and children in that connection, but we observe that no such objection was made in the court below, and if then made the witness could have more fully explained whether appellant used the words “his folks” or his family or what. The bill shows that witness was asked if he had a conversation with appellant in regard to “his wife and family,” and that he replied, “Well a little; not a great deal.” Asked to state what the conversation was, witness Pitman replied: “I had a little 'conversation with him as to his family. * * * I-Ie said he and his folks could not get along and he decided to leave the, whole bunch,” and further that he had left them some four or eight years before. We think this shows that appellant referred to his family, and that the matter was of such materiality as to make the testimony of Pitman competent to rebut the statements made by appellant while on the witness stand.

In seeking to have the law of cooling time applied to the making of statements by him shortly after the fatal difficulty and relative thereto, appellant overlooks the law of res gestee, based wholly on the proposition that what is said against interest by the participants in the transaction so closely related thereto in point of time, or by reason of stress of mind or excitement as to make it appear that the facts themselves speak through the mouths of the parties, thus becomes evidential.

Paraphrasing the poem about the sol-clier of the Legion who lay dying in Algiers, by the state’s attorney, so as to state in his address to the jury that a one-legged soldier of the Legion lay dying in Texas on San Jacinto day, would hardly seem reviewable by us.

The bill of exceptions complaining of the remarks of state’s counsel in regard to appellant having deserted his wife, etc., is qualified by the statement of the trial judge to the effect that such remark was supported by the record and justified by what had been said in argument by appellant’s counsel. As so qualified the bill was accepted by appellant and thus becomes binding on us. So, also, of bill of exceptions No. 34 further complaining of the argument of the state. We cannot know what was said in argument by appellant’s counsel, and when the trial court qualifies the bill setting forth the objection to the argument of state’s counsel, certifying that it was in reply to what had been said by appellant’s counsel in his argument, and there is no objection to such qualification, this is tantamount to an agreement on the part of appellant that the statement made in the qualification is true.

Being unable to agree with the contentions made by appellant, the motion for rehearing will be overruled. 
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