
    BLACKMON v. STATE.
    (No. 6795.)
    (Court of Criminal Appeals of Texas.
    Feb. 14, 1923.
    Rehearing Denied June 27, 1923.)
    1. Criminal law <&wkey;1 163(2) — Refusal of inspection of letters assumed not harmful in absence of showing to contrary in bill of exceptions.
    In a prosecution for murder, where the state had taken a letter from one to whom the accused had written it, in the absence in the bill of exceptions of a showing of the purport of the letter, or that the state made use of it, it will be assumed that a refusal of the accused’s motion to be allowed to inspect the letter was not harmful.
    2. Homicide &wkey;>300(14) — Instruction on self-defense held not defective as failing to state that appearances must be viewed from defendant’s standpoint.
    In a prosecution for murder, defended on the ground of self-defense, an instruction that, in determining whether there was reason to believe that danger did exist, the appearance must be viewed from the standpoint of the defendant at the time of the homicide, and from no other standpoint, was not objectionable ¿or failing to instruct to view the matter from the defendant’s standpoint.
    3. Criminal law (&wkey;844( I)— Exception to charge on self-defense held too general.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 735, requiring objections to a charge to distinctly specify each ground for objection, a complaint of a charge that it did not specifically apply the law of self-defense to the facts of the case, but contained abstract propositions of law, was too general to be considered.
    4. Homicide <&wkey;300(3)— Charge held not objectionable as requiring deceased to have done some act or spoken words threatening accused.
    In a prosecution for murder, an instruction part of which was in substance that, if the deceased and the accused had quarreled, and the deceased cursed and threatened the accused with violence and the accused retired to his room, and shortly thereafter the deceased approached the room of the accused, who called to him not to come in, and the deceased opened or attempted to open the door, or by words, acts; or conduct on his part it reasonably appeared to the accused, viewed from his standpoint, that the deceased was' about to enter to kill him or do him serious bodily injury, or if because of any act or conduct of the deceased it appeared to the accused, viewed from his standpoint, that the deceased was about to attack him to kill him or do him serious bodily injury, and so believing he shot and killed the deceased, he would not be guilty, was not objectionable as requiring the jury to find that deceased had, prior to approaching defendant’s door, done some act or spoken some word threatening to inflict violence upon the accused.
    5. Homicide <&wkey;30<K7) — Charge on relative strength of parties uncalled for, defense being based on theory that deceased was armed.
    In a prosecution for murder, defended on the ground that the accused thought the deceased was armed, and was about to attack him with a pistol, a charge on the relative strength of the parties was uncalled for.
    6. Criminal law <&wkey;>770(l) — Charge on state's theory not improper.
    In a prosecution for murder, defended on the ground that the accused thought that the deceased was approaching to kill or injure him, an instruction presenting the state’s theory that the deceased was approaching to give the accused an account book, and had so stated to the accused, was not improper.
    7. Criminal law <&wkey;366(3) — Testimony of witness who arrived at scene of shooting soon after it happened admissible as part of res gestee.
    In a prosecution for murder, testimony by a witness who lived near the deceased and heard the shots, and who went at once to him, of what, the deceased said concerning the shooting, was admissible as part of the res gesta?.
    8. Criminal law <&wkey;l 171 (I) — Argument of attorney held not reversible error.
    In a prosecution for murder, an argument of an attorney, “I would rather you would vote the defendant a resolution of thanks, and give him a new gun, and tell him to kill another man, than suspend the sentence in this case,” in the absence of a showing that it was not invited, did not constitute reversible error.
    9; Criminal law <&wkey;1120(1) — Mere recital of reasons for objecting to evidence not sufficient.
    A mere recital in bills of exceptions of reasons for objecting to evidence is not sufficient.
    10. Homicide <&wkey;!93 — Proof that deceased was unarmed held competent.
    In a prosecution for murder, defended on the ground of self-defense, it was competent for the state to prove that the deceased was unarmed.
    11. Criminal law <&wkey;394 — Homicide <&wkey;!74 (8) — Letter by accused taken from witness by officers held admissible.
    In a prosecution for murder, a letter written by the accused to his brother, who testified for the accused, advising him to be subpoenaed as a witness, and then, if he was sick, and qould not be present, the case would be 'continued, was admissible as a declaration of the accused concerning the ease on trial to a witness, and the fact that it was obtained from the witness by the officers who arrested him did not affect its admissibility.
    On Motion for Rehearing.
    12. Criminal law <&wkey;843 — Exception to refusal of a charge to be shown by indorsement on charge or independent bill of exceptions. ,
    Exception to refusal of a charge must be shown either by indorsement on the charges themselves or by an independent bill of exceptions.
    13. Criminal law <&wkey;695(6)—Objection to whole of testimony part of which was admissible as res gestse not tenable.
    In a prosecution for murder, where testimony of a witness was admissible as res gestee although it contained statements which were not so admissible, an objection to the testimony as a whole was not tenable.
    Appeal from District Court, Wood County; X R. Warren, Judge.
    Claude Blackmon was convicted of manslaughter, and he appeals.
    Affirmed.
    R. E. Bozeman and Ben P. Cathey, both of Quitman, and Jones & Jones, of Mineóla, for appellant.
    W. A. Keeling, Atty. Gen., and O. h. Stone, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Under an indictment for murder appellant was convicted of manslaughter; punishment fixed at confinement in the penitentiary for a period of two years.

The appellant shot and killed Bethel Blackmon, his uncle. The homicide took place at the home of the deceased, where appellant also lived. Appellant was working for the deceased under an/ agreement by which the appellant was to receive the proceeds from a certain number of acres of cotton. A short time before the homicide the appellant and deceased, according to some of the testimony, passed some harsh words concerning a settlement. The appellant, according to some of the testimony, called for a memorandum book in which the cotton weights were kept. The deceased did not produce the book at the time, but said that he would do so later. Appellant went into a room occupied by him, in which there were also the witness Clark and Bennett Black-mon, a brother of the appellant. The deceased afterwards came to the door of the appellant’s room, and appellant fired two shots through the door, and, according to some of the testimony, pursued the deceased out of the door and fired at him again.

Appellant presented the theory of self-defense, claiming that from certain movements of the deceased which he heard he believed that the deceased had gotten a pistol out of a trunk situated in his room, and that he came to appellant’s door with hostile intentions. It is the state’s theory that the deceased went to the door to furnish the appellant with the book which he had previously called for, and to further discuss the settlement.

A great number of bills of exceptions are found in the record:

In bill No. 1 it is made to appear that the appellant had written certain letters to Bennett Blackmon; that the sheriff of Potter county arrested Bennett Blackmon, and took the letters from his possession while he was under arrest without the consent of the appellant and without any legal process. Appellant requested the court in a motion tó require the state to permit him to inspect the letters, stating that they were necessary in the preparation of his case. Under certain circumstances the state’s counsel may be required to furnish the appellant any written memorandum in his possession. See Green v. State, 53 Tex. Cr. R. 491, 110 S. W. 920, and cases cited. See, also, the same ease reported in 22 L. R. A. (N. S.) 706; also Jones v. State, 85 Tex. Cr. R. 547, 214 S. W. 322. In the instant case, however, the bill does not reveal the purport of the letter in question, which seems to have been written by the appellant; nor does it show that the state made any use of it in the trial of its ease, nor is the letter, or its substance set out in the bill of exceptions referred to so that this court may determine the merits of the motion. In the absence of information upon the subject being revealed by the bill of exceptions, this court must assume that the ruling of the trial court was not harmful. ‘ Brown v. State, 83 Tex. Cr. R. 451, 203 S. W. 898; Manning v. State, 51 Tex. Cr. R. 214, 98 S. W. 251; Williams v. State, 53 Tex. Cr. R. 3, 108 S. W. 371; Tillman v. State, 88 Tex. Cr. R. 10, 225 S. W. 165.

A number of exceptions are found to the charge on self-defense. In bill No. 2 the complaint is that the charge failed to instruct the jury to view the matter from appellant’s standpoint. The court, in its charge on self-defense, used this language:

“ * * * And in determining whether or not there was reason to believe that danger did exist, the appearances must be viewed from the standpoint of the defendant at the time of the homicide, and from no other standpoint.”

In bill No. 3 the complaint is made that the seventh paragraph of the charge does not specifically apply the law of self-defense to the facts of the case, but merely contains abstract propositions of law. The seventh paragraph of the charge covers about two pages of the record. So far as we are able to discern, the court in an admirable manner, instructed on the law of self-defense as applicable to the evidence. The exception to it is too general to merit consideration. The statute requires that objections to the charge shall “distinctly specify each ground for objection.” Article 735, Code of Criminal Procedure.

The complaint in bill No. 4 is that the charge does not specifically tell the jury that it was not necessary that “deceased be actually armed.-” There was no special charge requesting this, and the main charge fairly and adequately covered the law of apparent danger, -and that in deciding the question the matter must be viewed from the standpoint of the appellant. We think the charge is not subject to the objection presented.

Bill No. 5 complains that the seventh paragraph of the charge requires that the jury should find that the deceased had, prior to the time he approached the door to defendant’s room, done some act or spoken some word or words in either the dining room or room of the deceased manifesting an intention upon the part of the deceased to inflict violence upon the defendant. We do not understand the charge to be subject to such interpretation. From it we take the following quotation:

“Now, if you shall find from the evidence that the defendant, Claude Blackmon, about the time alleged in the indictment, shot and thereby killed the deceased, then, if you shall further find that at the time he did so the deceased, by words or conduct, or both by wor’ds and conduct, or acts upon his part, created in the mind of the defendant a reasonable apprehension or fear of death or serious bodily injury at the hands of the deceased, viewing the facts and circumstances from the defendant’s standpoint at the time, and, so believing, he shot and killed the deceased, or if you have a reasonable doubt thereof, you will find defendant not guilty. Or if you shall find that shortly prior to the difficulty in question the defendant and deceased had words, altercation, either in the dining room or the room of deceased, or both, and that the deceased cursed, and threatened the defendant with violence, and that the defendant retired to his room, and that shortly thereafter the deceased came out of his room and into the hall, and approached the room of the defendant, and that defendant called to him not to come in said room, and that thereupon the deceased opened or attempted to open the door of the defendant’s room, or by words, acts, or conduct upon his part it reasonably appeared to the defendant, viewed from his standpoint, that the deceased was about to enter said room for the purpose of killing the defendant or doing him serious bodily injury, or if because of any act or conduct upon the part of deceased it reasonably appeared to defendant, viewed from his standpoint at the time, that deceased was about to attack him for the purpose of killing him or doing him serious bodily injury, and so believing he shot and thereby killed the deceased, he would not be guilty, and if you so find or have reasonable doubt thereof you will find him not guilty.”

The sixth bill complains of the failure of the court to refer in the charge to the relative strength of the parties. The appellant used a pistol upon the deceased, and contends that he did so because he believed that the deceased was armed and was about to attack him with a pistol. Under these circumstances, a charge on the relative strength of the parties was not called for. Vann v. State, 45 Tex. Cr. R. 434, 77 S. W. 813, 108 Am. St. Rep. 961; Patterson v. State, 87 Tex. Cr. R. 101, 221 S. W. 596; Ballard v. State, 71 Tex. Cr. R. 587, 160 S. W. 716. The state’s theory, arising from the testimony, was that the deceased went to appellant’s room to hand him a book which the appellant had previously demanded, which contained some data bearing upon a settlement between the two, and that before the shooting took place the deceased told the appellant that he was bringing the book. In submitting the converse of appellant’s right of self-defense, from the state’s standpoint, this phase of the case was presented to the jury. Appellant’s complaint of it, we think, is not sound. See Branch’s Ann. Tex. Penal Code, § 1942; Humphries v. State, 25 Tex. App. 127, 7 S. W. 663, and other cases collated by Mr. Branch in the section mentioned to the effect that it is not improper to charge on the state’s theory.

The wife of the deceased testified that appellant came and said, “Uncle Bethel, I want the cotton book;” that the deceased replied that he would look for it in a minute; that, after some further conversation, the appellant left the room in a bad humor, and went to his own room; that the deceased took the book and went to appellant’s door, and said, “Claude, open the door; here is your book;” that immediately shots were fired.

The witness Champion testified that he lived near the deceased; that he heard shots fired; that in a short time, quicker than a man could, usually walk the distance, he heard some one call him, and say: “Come to me quick. This is Bethel. I am not going to hurt you. Claude has killed me; he shot me: come to me quick; I can’t live but a few minutes.” Deceased told the witness how the shooting took place. He said that it was about a settlement; that it was principally because he would not buy the top crop of cotton that was in the field'; that that was what they were talking about; that Claude went into the other room and began quarreling; that the deceased got his book, and said, “Here, take the book and look over it; satisfy yourself; I want to treat you right';” that Claude told him not to come in; that the door was not open, and when the deceased started to open it the appellant shot him; that appellant shot him and ran off; that he (the deceased) had no pistol, and was not armed. The witness further testified that he made an examination of the deceased, and found that he was wounded; also found certain articles upon his person, and also found a steel hondoo loop out of a lariat rope, a small thp, and some nails, but found neither pocket knife nor pistol. He also described the wounds. They were on the left side, below the short ribs, through the fleshy part of the arm, and through the wrist. There were two holes in the arm and one in the side. The witness also examined the door separating appellant’s room from that of the deceased, and found two bullet holes through the panel of the door.

Exceptions to the court’s charge embraced in bills Nos. 7 and 8 were not sufficiently. specific in tlieir complaint of the charge to require consideration.

Bills Nos. 12 and 14 relate to an argument in which one of the attorneys said:

“I would rather you would vote the defendant a resolution of thanks and give him a new gun and tell him to kill another man than suspend the sentence in this case.”

We assume that this relates to a remark of the prosecuting attorney, though the bill does not so state. The bill does not show that it was not invited. If improper, which we do not hold, we think it was not ¡such as would demand p reversal of the judgment.

Another bill complains that the same attorney said:

“Why did you object to the testimony of Mr. Jolley about what happened on the trip to Tacoma, and let the light in.”

This bill fails to show the connection of Mr. Jolley and the trip of Tacoma with the case; nor does it give any facts by which we may appraise its merits.

The District Attorney used the following language:

“That you should render a verdict that will announce to the world that murder must stop in old Wood county.”

Nothing more is shown by the bill. However, the court instructed the jury to disregard the remark.

Complaints of the testimony of the witness Champion, which has been set out above, are made in several bills of exceptions. A mere recital of the reasons for objecting to the evidence is not sufficient. Brown v. State, 83 Tex. Cr. R. 451, 203 S. W. 898, Tillman v. State, 88 Tex. Cr. R. 10, 225 S. W. 165, and other cases. The matter might be disposed of on that ground. However, on the merits we deem the evidence admissible. The statement of facts to which we have adverted above shows the connection of this testimony with the transaction, and reveals a state of facts showing that it was so closely connected with the shots which were fired as to bring it within the res gestee rule. The deceased had gone a short distance from his own house, where he received his wounds, towards the home of the witness Champion, when, by his outcries, he summoned Champion to his side, and there related the facts which have been detailed above, and which are set out in the bills. Taking the testimony as a whole, we think this manifestly brings it within the res gestas rule. Branch’s Ann. Tex. P. C. § 83. Its admission is also probably justified as a dying declaration.

It was competent for the' state to prove that the deceased was unarmed. Grubb v. State, 43 Tex. Cr. R. 72, 63 S. W. 314.

Bills Nos. 20 to 29, inclusive, have been carefully examined and considered. They relate to matters of practice in cross-examination of appellant and some of his witnesses, the complaint being in the main of the propounding of improper questions. The bills present no harmful error, and they are not deemed of such Importance as justifies a discussion in detail.

The state introduced in evidence a letter addressed to L. Bennett, Jesseville, Ark., which had been written by the appellant. The addressee was, in fact, Bennett Blackmon, a brother of the appellant, and an eyewitness to the homicide. In the letter the appellant advised his brother to go to Vernon, Tex., where a subpoena might be served upon him as a witness in appellant’s ease. In the letter it is said:

“ * * * Get subpoenaed, and then if you ar,e sick or something not come; you don’t have to come even after you are summoned, but if you are not summoned they can force me into trial without you. * * * You be sure and ' do what I say, then when the case is continued you can meet me somewhere.”

Other expressions in the letter indicate that it would bring about a condition that would result in a continuance of appellant’s case. It is susceptible of that construction. Bennett Blackmon had given testimony on the trial which was very favorable to the appellant. It was shown'by the bill that the letter was taken from Bennett Blackmon while he was under arrest, and without his consent. In connection with the circumstances which it reveals, and which were disclosed in connection with it, it bore upon his animus, and showed the relation between the appellant and the witness. The fact that it was obtained from Bennett Blackmon by the officers who arrested him did not militate against its admissibility in evidence against the appellant. It was a declaration of the appellant concerning the case on trial, and which declaration was made to a witness in behalf of the appellant. Renfro v. State, 42 Tex. Cr. R. 393, 56 S. W. 1013; Jones v. State, 85 Tex. Cr. R. 546, 214 S. W. 322, and cases there cited.

The affirmance of the judgment is ordered.

On Motion for Rehearing.

HAWKINS, J.

In paragraph 8 of the original opinion, discussing the complaint that the court omitted to charge the jury that it was not necessary to appellant’s defense that “deceased be actually armed,” we incorrectly stated that no special charge was presented requesting this. The motion for rehearing calls attention to this mistake. We should have said that no exception was reserved to the refusal of the special charge. The special charges found in the record show by proper indorsement that they were timely presented and were refused; but neither by indorsement on the charges themselves, or by independent bills, is it shown exception to their refusal was taken. This must be shown; but the point may be preserved in either of the ways mentioned. Craven v. State (Tex. Cr. App.) 247 S. W. 515; Brooks v. State (Tex. Cr. App.) 247 S. W. 517; Hickman v. State (Tex. Cr. App.) 247 S. W. 518; Rhodes v. State (Tex. Cr. App.) 248 S. W. 679; Linder v. State (No. 6558) 250 S. W. 703, opinion on rehearing May 2, 1923. Upon the question raised by exception to the main charge on this point we are referred to Kemper v. State, 63 Tex. Cr. R. 1, 133 S. W. 1025. That opinion was rendered in 1911, whereas present article 743, Code Crim. Proc., was amended in 1913 (Laws 1913, c. 138 [Vernon’s Ann. Code Cr. Proc. 1916, art. 743]). It is our opinion that under the facts of this case and the provision of said amended article reversible error would not have been presented even if proper exception had been reserved to the refusal of the special charge in view of the main charge upon the issue.

There may have been some statements testified to by the witness Champion as made by deceased that could not be classed ás coming within a res gestee declaration. However, no objection appears to have been made specifically to any particular part, but the objection went to the entire statement. As made it was not tenable. The portions of the statement which might have come under the inhibition if specifically objected to do not occur to us as being so seriously harmful as contended by appellant.

The motion for rehearing is overruled. 
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