
    POWDRILL v. STATE.
    (Court of Criminal Appeals of Texas.
    May 24, 1911.)
    1. Criminal Law (§ 475) — Evidence — Experts— Subjects of Expert Testimony.
    Where there was no eyewitness to the killing of deceased, except accused, and he testified to facts indicating that the killing was in self-defense, and it was material to that issue to determine whether the first shot entered under the arm of deceased, it was improper to permit a physician to testify to an opinion that the first shot was the one that entered under the arm, and that the wound on the arm was not inflicted by the same shot.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1003; Dec. Dig. § 475.]
    2. Criminal Law (§ 448*) — Evidence—Non-expert Opinion — Mental Condition.
    Where the state claimed that accused killed his son within 20 or 30 minutes after the son had joined his mother in making affidavits against accused for violating an injunction in a divorce suit brought by the mother, evidenqe of witnesses who observed accused just before the killing that he spoke in an angry manner and looked mad, that his ■ voice trembled, and his face was red and flushed, that he was much excited and seemed to be iu a hurry, was admissible.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 1041; Dec. Dig. § 448.]
    3. Homicide (§ 166) — Murder—Evidence-Motive.
    Where the state’s theory in a prosecution for homicide was that defendant killed deceased because of assistance rendered to his mother in a divorce suit brought by her against defendant by making an affidavit for her to secure defendant’s punishment for violation of an injunction issued in that action the state was entitled to introduce so much of the proceeding in that suit as would show that the suit had been instituted ; that defendant’s wife had secured an injunction restraining defendant from disposing of any of their property, and also prohibiting him from going on the premises where they lived, or interfering with her or her family; and that she' had made affidavit accusing defendant of violating the injunction, and the substance thereof, but was not entitled to introduce proof of the grounds of divorce, and the allegations concerning the same, or the grounds of the injunction wherein accused was charged with cruel treatment and other wrongful acts.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 320-331; Dec. Dig. § 166.]
    4. Homicide (§ 189) — Evidence—Threats— Prior Altercation — Details.
    Where evidence of previous threats by accused against deceased was introduced, evidence of the fact of a prior altercation between them, in which defendant cut deceased, without the details thereof, was admissible.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 398; Dec. Dig. § 189.]
    5. Homicide (■§ 295) — Murder — Cooling Time.
    Where defendant killed deceased within 20 or 30 minutes after he had heard that deceased had executed an affidavit accusing defendant of violating an injunction obtained by deceased’s mother in a divorce suit brought against defendant, and there was evidence that knowledge of this fact rendered defendant very angry and excited, he was entitled to an instruction on cooling time, though the evidence did not show an altercation or fight between deceased and defendant prior to the killing, under the rule that if the mind of the slayer is not cool and deliberate when the intent to kill is formed, but he is laboring under excitement or passion, the homicide is reduced to murder in the second degree.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 606-609; Dec. Dig. § 295.]
    6. Homicide (§§ 300, 309) — Instructions.
    In a prosecution for homicide, it is the court’s duty to submit the subject of manslaugh.-ter and self-defense affirmatively, and not’merely in a negative manner.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. §§ 61A-632, 649-656; Dec. Dig. §§ 300, 309.]
    Appeal from District Court, Shelby County; James I. Perkins, Judge.
    J. O. Powdrill was convicted of murder, and he appeals.'
    Reversed and remanded.
    . D. M. Short & Sons, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same'topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

The appellant was indicted for killing his son, Oscar Powdrill, on June 23, 1910, convicted of murder in the first degree, and given a life sentence. Several questions are raised which will be necessary to discuss and determine.

1. By appellant’s fourth bill of exception he complains that the court permitted Dr. Bryan to testify which shot of the two shots fired by appellant at the deceased was the shot that took effect under the left arm, and that this was the first shot fired. The testimony complained of is shown by the bill to have been elicited in this way: The court asked the witness if he could tell whether this wound under the left arm was an independent wound or a different shot, or the same shot that entered under the arm pit. The witness answered that he could tell. “Q. Well, which was it? A. The first shot was the one under the arm. Court: And the wound on the arm was not inflicted by the same shot? A. It was not.” The objection to this testimony was “that it was not such a fact as an expert could answer, that the witness was not an eyewitness, and the jury were just as able to determine whether it was an independent shot or the same shot, or whether it was the first shot op the second shot, and it was their province under the circumstances to determine this question.”

In this case there were no eyewitnesses except the appellant to the killing. The appellant testified to such a state of facts as from his standpoint tended to show that he was acting in self-defense. A very material fact in the case was whether the first shot entered under the arm or not. We think it clear that this fact could not be testified to by the doctor, and that it was not such a character as an expert could give his opinion or conclusion about. It was for him to detail the character, location, etc., of the wounds and for the jury to determine this material fact. We think the court erred in not excluding this evidence of the doctor. Williams v. State, 30 Tex. App. 447, 17 S. W. 1071; Thompson v. State, 30 Tex. App. 325, 17 S. W. 448; McCormick v. State, 52 Tex. Cr. R. 495, 108 S. W. 669; Cooper v. State, 23 Tex. 331.

2. Other bills of exception show that appellant objected to the testimony of Nettie Powdrill to the effect that just before the ’ killing, when- appellant’ passed’ the residence where she, her mother, and other members of’ the family were sitting, ■ in speaking to them- he spoke angry or in an angry manner. And the testimony of Grade Pow-drill that she could tell from his manner, his walk, his look, the way he cleared his throat, and that his face was not straight, and there was a peculiar expression about his face, and that from all this, she said “he was mad and looked mad,” was also objected to. Like objection was made to the testimony of J. O. Walker to the effect that at the time the appellant learned from the witness that the appellant’s wife, accompanied by her son Oscar, the deceased, had just made an affidavit against him charging bim in effect with violating the injunction in having sold some hogs and thereby seeking to have him punished for violating the injunction, “that there was a peculiarity in the manner, looks, and tone of voice of appellant, while talking to the witness about this” and that “he spoke in a trembling tone of voice, and that his face was red and flushed, and that he was much excited, bothered, or something, and from his movements seemed to be somewhat in a hurry.” The objections to all this testimony in effect were that the testimony was but the expression of a conclusion or opinion of the witness and not a statement of the facts, and that they were prejudicial to the appellant.

In further explanation of the material facts surrounding this case it seemed to be important, both from the state’s and the appellant’s standpoint, to show the mental condition of the appellant and the cause therefor, occurring shortly and immediately before the killing’. It seems that the appellant’s wife, about two years prior to this had brought suit for divorce against the appellant and had secured from the court an injunction against him. The deceased, Oscar, his oldest son, as the appellant claims, and the evidence tended to show, had taken sides with the mother in the controversy between the father and the mother, and out of this some ill feeling at the time had existed between .them, and pending that first divorce suit the father and son had a fight thereabout, -and the father inflicted, with a knife or some other instrument, a wound upon deceased. That divorce suit for some reason was dismissed, and a reconciliation effected between appellant and his wife. Shortly prior to the killing the wife had instituted another divorce suit against appellant, and secured an injunction against him, among other things, restraining him from selling or disposing of their hogs; that the deceased, Oscar, his son, in that case took sides with his mother against the appellant; that the appellant, as the mother and son claimed, had violated this last injunction by selling some of the hogs and on the day of the Killing within 20 or 30 minutes prior •thereto, the son had accompanied the mother to one Of the witnesses, Walker, the notary before whom she had made an affidavit charging that the appellant had sold some of the hogs, and seeking to have him punished for a violation of the injunction; that the deceased, as the appellant was informed and believed, was aiding his mother against him at this time in this particular proceeding, and when the fact was communicated to him by Walker, before whom the affidavit had just been made, he became angry, etc., and proceeded to hunt the deceased, and killed him within 20 or 30 minutes of the time he heard and knew of this charge against him.

We think it well settled now that the opinion of a witness so far as it consists of the statement of the effect produced upon the mind which cannot be so described as that the jury itself can determine the fact is primary evidence, and is admissible; in other words, that it is a mere short-hand rendering of the facts, and is admissible. In our opinion the court properly permitted each of these witnesses to testify substantially as shown by the bills of exception. Bennett v. State, 39 Tex. Cr. R. 648, 48 S. W. 61; Meyers v. State, 37 Tex. Cr. R. 208, 39 S. W. 111; Powers v. State, 23 Tex. App. 42, 5 S. W. 153; Miller v. State, 18 Tex. App. 232; Cooper v. State, 23 Tex. 331.

3. Other bills of exception of the appellant show that he objected for various reasons to the introduction in evidence of the said affidavit made by his wife against him before Walker, a notary public, 20 or 30 minutes before the killing, charging him with having violated the injunction, and seeking to have him punished therefor, and to the petition, order, and writ of injunction in the divorce suit. On this subject it is our opinion that it was clearly permissible for the state to prove that such a divorce suit had been instituted by Mrs. Powdrill against the appellant, and that therein she had secured an injunction restraining the appellant from disposing of any of their property, including their hogs, and also prohibiting him from going upon the premises — the home —where the wife lived, and bothering or interfering with her or her family. Also, that she had made the affidavit above stated, and the substance thereof. This proof could be made by the introduction of so much of the proceedings in said case as would show these material facts, but it is our opinion that the grounds of the divorce and the allegations thereabout and the grounds of the injunction and the allegations thereabout, wherein the appellant is charged with cruel treatment and other wrongful acts, were clearly not admissible. Such allegations could have no effect other than to influence the minds of the jury against the appellant because of her claimed mistreatment of his wife. On another trial the court can control this matter so as to permit the material' facts to be shown, and the immaterial, irrelevant matters thereabout excluded.

4. Other bills of the appellant complain of the action of the court in permitting the witnesses Gracie Powdrill and Bob Pow-drill to testify as to the particulars of a fight between the appellant and the deceased, growing out 'of the appellant’s claimed interference and taking sides with his mother and interfering with appellant’s business in the first divorce suit. In connection with this, various threats were also testified to by these or other witnesses. Without going into the details of this matter, it is our opinion that the fact of a fight or altercation between the appellant and the deceased which grew out of and was caused by the claimed interference by the deceased with the appellant in his affairs and his taking sides with his mother, and that in such fight or altercation the appellant cut the deceased, was admissible; but the details of the fight other than the claimed cause therefor were inadmissible. This matter can also be controlled by the court on another trial of the case so as to permit what was admissible and what was inadmissible in accordance with this opinion.

5. Many complaints are made of the charge of the court and various subdivisions thereof. The court charged on murder in the first degree, murder in the second degree, self-defense and manslaughter, but did not charge on cooling time.

The appellant claims that the evidence showed such a state of agitation, of anger, resentment, etc., when he first was informed and learned that his wife had made the affidavit seeking to have him punished for disposing of the hogs in violation of the injunction and that the son, deceased, was connected therewith or instrumental therein, as to call for a charge on cooling time, claiming that this agitation, anger, etc., rendered his mind incapable of cool reflection, and that he was thereby not shown to have killed the deceased with express malice and that instead of being guilty of murder in the first degree on that account the jury should have been authorized to have found under an appropriate charge on cooling time that he was guilty of murder in the second degree instead of in the first degree. The appellant also complains that the court, for the same reason and in the same way, ought to have charged on cooling time with reference to manslaughter.

It is well established in this state “if the •mind of the slayer is not cool and deliberate when the intent to kill is formed, but is laboring under excitement, or passion, this would reduce the homicide to murder in the second degree.” Kannmacher v. State, 51 Tex. Cr. R. 125, 101 S. W. 238; Gaines v. State, 53 S. W. 623; Thomas v. State, 45 Tex. Cr. R. 111, 74 S. W. 36; Boyd v. State, 28 Tex. App. 137, 12 S. W. 737. It seems to be also well established that, when the evidence calls for it, it is necessary in- a murder case to charge on cooling time as between murder in the first and murder in the second degree. Dixon v. State, 51 Tex. Cr. R. 555, 103 S. W. 399; Rice v. State, 51 Tex. Cr. R. 257, 103 S. W. 1156; Cooper v. State, 49 Tex. Cr. R. 31, 89 S. W. 1068; Manning v. State, 48 Tex. Cr. R. 57, 85 S. W. 1149. And this whether the appellant’s testimony shows it or it is shown hy the testimony of any other witness, or witnesses. It is true that a charge on cooling time is ordinarily held to arish in cases when the testimony shows an altercation or fight between the deceased and the appellant other and different and shortly prior to the time of the hilling, .but we think that it is not essential that a fight or previous altercation should occur. Anything that occurs to the appellant shortly prior to the killing in connection with deceased which so excites or angers or otherwise disturbs his mental equilibrium, and that sufficient time after this has not elapsed to show that he has time to become cool, calm, and deliberate, that it would be proper to charge on cooling time. These matters can be properly charged, if the evidence raises them, on another trial of this case.

6. Complaint is also made of' the charge of the court on the subject of manslaughter in that it does not submit to the jury that question affirmatively, but in a negative manner to the injury of the appellant. This criticism may be correct, and the court on another trial can so charge as that this criticism cannot correctly be made.

A somewhat like objection is made to the charge of the court on self-defense. It is unnecessary for us to go into detail in the discussion of the appellant’s various objections to this and other charges of the court. We merely call attention to them so that the court can, on another trial, give the charges on these subjects affirmatively as well as negatively if necessary. In our opinion the record does not show any such state of facts as called for a charge on provoking the difficulty by deceased at the immediate time of the killing as claimed by appellant.

For the errors above pointed out, the judgment is reversed and the cause remanded.  