
    ARKHAMMER v. STATE.
    (No. 10817.)
    Court of Criminal Appeals of Texas.
    April 13, 1927.
    Rehearing Denied June 15, 1927.
    1. Homicide <&wkey;!5l (I) — Application of law respecting right to protect property and family, which is defensive right, requires showing of necessity.
    Right to protect one’s property and family to whatever extent may be necessary is defensive and not offensive, and, before law of such right applies, there must be showing of facts making apparent necessity for such application.
    2. Homicide <&wkey;>!22 — Defense of family or other person is as sacred as right of self-defense.
    Right to defend one’s family or any other person is as sacred as right of self-defense.
    3. Homicide <&wkey;303 — Evidence held insufficient to raise issue of defense of family or property by defendant, prosecuted for murder of deceased approaching defendant’s car on request.
    In prosecution for murder, evidence that deceased .approached defendant’s car at defendant’s request, that defendant remonstrated with deceased for his conduct towards his wife, and that deceased took hold of defendant’s gun to prevent his Using it on him, did not show that deceased was attacking or trying to injure de-iendant’s property or was threatening attack on defendant’s family in car sufficient to raise issue of defense of family or property for jury.
    4. Criminal law <&wkey;823(6) — Charge held not objectionable for failing to state defendant’s right to arm himself and remonstrate with deceased, where matter was covered by subsequent special charge.
    Charge held not objectionable as failing to state that defendant had right to arm himself and seek deceased for purpose of demanding that latter stop visiting his wife and home, where subsequent special charge covered same matter.
    5.Homicide <&wkey;47 — Failure to charge that illicit relations between defendant’s wife and deceased reduced killing to manslaughter held not error, where defendant knew of relations for over year and admitted killing was not caused thereby.
    Where defendant, prosecuted for murder, knew for over year of illicit relations between deceased and his wife, and denied killing deceased for such reason, failure to charge that adultery between deceased and defendant’s wife was adequate cause reducing killing to manslaughter, and that deceased’s conduct, when requested to desist from such relations, amounted to adequate cause, though killing did not take place at first meeting between deceased and defendant, held not erroneous, under Pen. Code 1925, art. 1249, before amended by Acts 40th Deg. (1927) c. 274, requiring killing, to be reduced to manslaughter, to take place as soon as defendant received information of improper relations or at first meeting thereafter.
    .6. Homicide <&wkey;49 — Killing of person insulting slayer’s female relatives cannot be reduced to mansláughter, where slayer knew of conduct and often met deceased thereafter.
    Person knowing of insulting conduct to female relatives, permitting it to continue, and often meeting guilty party, and thereafter demanding that he desist, cannot claim adequate cause reducing killing of guilty party from mur: der to manslaughter, under Pen. Code 1925, art. 1249, prior to amendment by Acts 46th Leg. (1927) c. 274.
    7. Homicide <&wkey;239 — In determining whether mind of accused was incapable of cool reflection, jury may consider all facts in evidence.
    Jury may take into consideration all facts and circumstances in evidence, in determining whether mind of accused was in such condition as to render it incapable of cool reflection.
    8. Criminal law <&wkey;l 120(3). — Bill of exceptions, containing no statement of possible answer to question complained of, presented no error.
    Bill of exceptions, not- stating what answer of witness to question objected to would have been, presented no error.
    9. Criminal law «&wkey;1120(6) — Bill excluding defendant’s statement he had ho education, after admitting his written statement, held to present no error.
    Where state offered part of written statement by defendant prosecuted for murder, and defendant offered entire statement, refusal to allow defendant to state that he had no education presented no error, under bill of exception failing to show how testimony would become pertinent.
    10. Criminal law <&wkey;377 — Refusal to permit further examination of character witnesses stating they heard nothing against defendant, which was equivalent to saying reputation was good, held not error.
    Statement by witnesses that they never-heard anything against defendant was tantamount to saying that his reputation was good, and refusal to further examine witnesses was not error, where state did not rebut testimony of good reputation.
    11. Criminal law &wkey;4l9, 420(11) — Testimony by defendant’s wife as to what defendant told her was narrated to him by deceased’s wife held properly excluded as hearsay.
    Testimony by wife of defendant prosecuted for murder as to what defendant told her of matter narrated to him by deceased’s wife held properly excluded as hearsay.
    12. Criminal iáw &wkey;>530 — introduction of part of defendant’s written statement, subsequently introduced as whole by defendant, held proper.
    Where defendant prosecuted for murder was warned as required by law, introduction by state of part of written statement by defendant, subsequently introduced as a whole by defendant, was proper.
    On Motion for Rehearing.
    13. Homicide <&wkey;303 — Issue of defense of property, if raised by evidence in murder prosecution, must be submitted to jury.
    In prosecution for murder, if evidence raised issue as to defense of property, it must be submitted to jury.
    Appeal from District' Court, Montgomery County; J. L. Manry, Judge.
    Henry Arkhammer was convicted of murder, and he appeals.
    Affirmed.
    McCall & Crawford, of Conroe, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Dyles, ksst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Conviction of murder; punishment, 25 years in the penitentiary.

In his brief, reliance is. chiefly had by appellant upon certain errors asserted relative to the charge. Appellant excepted to the charge because, first, it did not submit that adultery between deceased and the wife of appellant was adequate cause to reduce the killing to manslaughter; second, that, even though the killing did not take place at the first meeting between deceased and appellant after the latter learned of the relations between his wife and deceased, the acts and conduct of deceased, when requested, on the morning of the homicide, to desist from such conduct, amounted to adequate cause, and the court should so have informed the jury; third, the charge did not tell the jury that appellant had a right to arm himself and seek deceased for the purpose of demanding that the latter stop visiting his wife and home; fourth, the charge failed to tell the jury “that defendant had the right to protect his property, namely, his gun, car, and family, from forcible trespass upon same by deceased, and to use all necessary force to prevent such trespass.”

That one has the right to protect his property and his family, in a proper case, to whatever extent may be necessary, will not admit of doubt, the right to defend one’s family or any other person being as sacred as that of self-defense; but such right is defensive and nof offensive, and, before the law of such right applies, there must be a showing of facts making apparent the necessity for such application. The facts in this case demonstrate that appellant drove his car up in front of the home of deceased, who was washing his hands on the porch, and called deceased to come out to the car as he wanted to speak to him. Deceased started to the car. Appellant testified as follows:

“That day just before the killing I was going on down to Joe Woodley’s, and I taken my gun to go hunting. I saw Milton at the house, and I told him to step there a mispite, I wanted to speak to him. When he got nearly to the gate, I said, ‘Haven’t I been telling you about my wife; I want you to quit it.’ He broke to me and went to running and jumped on the car and grabbed hold of the gun, and I shot him. At the time I shot him, he had bold of the gun. The reason why I shot him was because he made a break to me. I told him to stop. He wouldn’t stop. He came a running, and I did not know what he was going to do.”

Appellant’s wife swore, in substance, the same as he did. We do not see in this any support for the claim that deceased was attacking or trying to injure or .destroy any property of appellant in either his gun or his car, nor does it evidence a real or threatened attack on appellant’s family. Appellant had the gun. Sitting in the car, he had invited deceased to come out to it. According to appellant’s own testimony, deceased came, drying his hands upon a handkerchief as he approached. Appellant says that he said to deceased, “Haven’t I been telling you about my wife; I want you to quit it;” and that deceased ran toward the ear and “grabbed hold of the gun, and I shot him.” If any defensive theory arises from such facts, it would be that of self-defense, based on belief on the part of appellant of an attack or threatened attack upon his person. It seems to us rather far-fetched to suppose that deceased intended or appeared to offer any injury to the. car or to the gun. On the trial, the. court instructed the jury on the law of self-defense, and did riot limit it by any charge on provoking the difficulty, which fact would seem favorable to appellant.

In regard to the third ground of exception to the court’s charge, we call attention to the fact that, in view of a special charge given, which told the jury specifically that, if appellant had been informed of adulterous relations between his wife and deceased, he had the right to demand of deceased that he stop visiting his place and his wife and let his wife alone, and for his own protection in going to see deceased about this matter he had the right to arm himself with a shotgun, the fact that he was so armed would not abridge or destroy his right of self-defense. This special charge must have been prepared and given after the third ground of the exception was- reserved, for it meets exactly the supposed defect in the main charge to which attention was called by said part of the exception.

We are not able to agree that either of the first two grounds of the exception is sound, under the facts of this case. Appellant swore that he had known for a year and a half of the illicit relations between deceased and appellant’s wife. In fact, when asked if he killed deceased because of information of such fact, he said he did not. He further stated, “I had got sort of used to it; he had been going it so long; that was not the reason I killed him.” As our law (Pen. Code 1925, art. 1249) was before changed by the Fortieth Legislature (Acts 40th Leg. [1927] c. 274), it required, as a condition precedent to the reduction of a homicide to the grade of manslaughter when based on insulting conduct of deceased toward female relatives of the slayer, that the killing take place so soon as the slayer got such information, or at the first meeting of the parties thereafter. The testimony before us negatives the fact that appellant so acted. This court has no power to extend the legislative enactment so as to make it reduce to manslaughter a killing by one who has long had knowledge of insulting conduct toward his female relative, has discussed that fact with the person slain, and where the' contention is there was a subsequent demand made upon the deceased that the conduct deemed insulting cease, which de-’ mand does not meet with verbal acquiescence, or is met with verbal refusal. We have no right to interpolate into the statute a holding that one who knows of such insulting conduct and permits it to continue and meets often the guilty party after he receives such information, and thereafter makes demand upon him that he stay away, may then kill him and claim that, because the insulter refuse, this amounts to adequate cause. Of course the jury have the right, and were so told in the case before us, in determining whether or not the mind of the accused was in such condition as to render it incapable of cool reflection, they may take into consideration all the facts and circumstances in evidence.

The question asked of state witness Lena Hood, “Had she been living with him before you got married?” complaint- of which appears in bill of exceptions No. 5, does not state what the answer of the .witness would have been had she been permitted to answer the question. Pierson v. State, 18 Tex. App. 563; Adams v. State, 35 Tex. Cr. R. 285, 33 S. W. 354. The bill is very indefinite, in that no explanation appears as to who was meant by “him.”

Refusal to allow appellant to state that he had no education presents no error under the facts before us, especially so as the bill presenting the complaint sets out no reason stated or apparent upon which such testimony would become pertinent. Walker v. State, 28 Tex. App. 505, 13 S. W. 860. The bill shows that the state had offered part of a written statement made by appellant, and sets out that he was compelled to offer the whole of such statement, and that the defense offered in evidence the signature to said statement and then asked appellant the question objected to.

Appellant introduced a number of witnesses who swore to his good reputation for being a peaceable, law-abiding citizen in the community in which he lived. The state offered nothing in rebuttal of this testimony. Two of appellant’s character witnesses said they had never heard anything against him. This was tantamount to saying his reputation was good. Appellant sought .to have them go further but was not permitted. We perceive no. injury in the matter appearing in either bill.

Appellant sought to have his wife testify to 'what he had told her as beihg facts .which had been narrated to him by the wife of deceased. This was plainly hearsay.

The complaint in bill of exceptions No. 9 to the introduction by the state of a part of the written statement made by appellant seems untenable. That appellant was warned, as required by law, was shown without controversy. That the state offered only a part of the written document seems in accord with the authorities. Early v. State, 9 Tex. App. 487; Giles v. State, 43 Tex. Cr. R. 563, 67 S. W. 411; Shaw v. State, 73 Tex. Cr. R. 337, 165 S. W. 930; Davis v. State, 85 Tex. Cr. R. 15, 209 S. W. 749. Appellant was permitted to introduce the whole of the statement, a part of which the state introduced.

We have carefully examined this entire record. Appellant’s claim that deceased was making an attack of any kind upon him seems an afterthought. In the written statement, made by him shortly after the killing, he made no such claim. The facts stated by him in said written statement appear almost the same as those given in testimony by the state witnesses.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

Appellant most earnestly contends through counsel, both by written and oral argument on rehearing, that we were wrong in holding that the evidence did not raise the issue of defense of property, and that no error was committed by the trial court in refusing a charge upon that subject. There is no difference between counsel and this court upon the law; that is, if the evidence raised the issue, it must be submitted to the jury. So earnest is counsel in his insistence that we have again carefully examined all the evidence, and especially that of appellant and his wife, for, if the issue was raised, it must have been by their testimony. This' further investigation has only confirmed the view expressed in our original opinion. Appellant could have had no idea that deceased was contemplating or attempting any injury to appellant’s automobile, and the contest over appellant’s gun does not indicate any effort on the part of deceased to deprive appellant of the property, but clearly appears to have been only deceased’s effort to prevent appellant from using the gun on deceased.

This still being our opinion, it follows that appellant’s motion for rehearing should be overruled. 
      ©=cFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     