
    HEAVRIN v. STATE.
    (No. 7069.)
    (Court of Criminal Appeals of Texas.
    June 21, 1922.
    Rehearing Denied Nov. 8, 1922.)
    1. Criminal law <@=>1091(10) — Verification by relation of facts of matters stated in bill of exceptions as ground of objection to testimony necessary.
    Matters stated in a bill of exceptions as ground of objection to testimony must be verified by tbe relation of the facts.
    2. Criminal law <@==>476 — Admission of physician’s testimony as to amount of blood, relative to piace of cutting, not error.
    On the question whether deceased was cut in the house or at a spot outside, there was no error in admitting testimony of a physician that one injured as he was would have shed more blood than was found there on the ground.
    3. Witnesses <@=>379(II) — Defendant’s witness may be impeached by contradictory statements out of defendant’s presence and hearing.
    It is not ground of objection to cross-examination for purpose of impeachment of defendant’s witness as to statements contradictory of his testimony that they were made out of defendant’s presence and hearing.
    4. Criminal law (@=>1091(9) — Bill of exceptions should show reason for refused charge, none being apparent.
    Bill of exceptions complaining of refusal of charge should give reason why it should have been given; none being apparent.
    5. Criminal law <@=>829(I) — Enough that requested charge is covered by main charge.
    It is enough that a requested charge is substantially covered by the main charge.
    6. Criminal law @=>763, 764(17) — Limitation in charge of effect and purpose of introducing witness’ statement contradictory of his testimony not on weight of testimony.
    Limitation in charge in the usual form of the effect and purpose of introduction of a statement of witness contradictory of his testimony is not open to the objection of being qn the weight of the testimony.
    On Motion for Rehearing.
    7.Criminal law <@=>829(5) — In absence of restriction on right of self-defense, special charge on right to go to deceased’s house not necessary.
    It is not necessary to give a requested special charge on the right of defendant to go to deceased’s house, where no restriction is placed on defendant’s right of self-defense in the court’s charge.
    Appeal from District Court, Ti£us County; R. T. Wilkinson, Judge.
    Jim Heavrin was convicted of murder, and be appeals.
    Affirmed.
    Wilkinson & Cook, of Mt. Pleasant, for appellant.
    R. G. Storey, Asst. Atty. Gen., for tbe State.
   LATT1MORE, J.

Appellant was convicted in tbe district court of Titus county of tbe offense of murder, and bis punishment fixed at 15 years in tbe penitentiary.

Appellant’s bill of exception No. 1, taken to certain testimony supposed to bave been given by a Mrs. Hicks, appears to bave been refused by tbe trial court because of tbe fact that no sucb transaction occurred and no sucb testimony was given, as is shown by tbe stenographer’s record. Tbe correctness of the court’s conclusion does not appear to be combated in any way.

Appellant also presents a bill of exceptions complaining of tbe fact that Mrs. Hicks called her brother over tbe telephone, and that a party answered saying that bis name was Jim Heavrin, and that said party repeated bis name, and that she asked him what bad happened over there, and be said that “Bobbie and I bave bad a little fight, and be thinks that be is hurt bad, but I don’t think so” ; that witness then bung up tbe receiver. Said bill reflects tbe fact that tbe witness testified that she was reasonably sure, judging from the voice, that it was tbe defendant. There are no sucb facts set forth in this bill of exceptions as would let us know the surroundings or tbe connection in which this testimony was offered and admitted by the court. This bill of exceptions, and likewise a number of others appearing in tbe record, are open to tbe objection that tbe matters stated therein as grounds of objection on tbe part of appellant are in no way verified by tbe relation of tbe facts. Section 38, p. 557, of Vernon’s G. O. P., cites many authorities supporting tbe proposition that tbe approval of a judge does not amount to a verification of tbe existence of tbe facts stated by appellant as grounds of objection. What we bave just said applies to appellant’s bills of exception Nos. 3, 4, 7, 8, and 10.

Appellant by bis bill of exceptions No. 5 complains of tbe testimony of Dr. Bradstreet to tbe effect that one injured as was deceased would have shed more blood than was found upon tbe ground at a certain spot. As qualified by tbe trial court, it appears that there was. a contest over tbe fact as to whether deceased was cut at said spot or in tbe bouse, and that there was much blood in tbe bouse and only a small amount of blood outside at tbe spot testified to by the physician. We are unable top perceive any error in allowing tbe testimony.

We believe tbe testimony of Mrs. Hicks regarding tbe removal by her of tbe bed-clothing and pillows from the room in which the cutting occurred, and tbe fact that they were saturated with blood, and to tbe physical condition of deceased at that time, was competent. No facts appear in tbe bill from which we can learn the injurious effect of said testimony, or by which we may know it was incompetent. There is a qualification of the trial court to this bill of exceptions from which we would conclude that the testimony was material.

There is a bill of exceptions complaining of the cross-examination of Charley Heavrin with regard' to a statement made by said witness which was contradictory of his testimony as given upon the trial of this ease. Said witness gave testimony for the defense which, if true, was exceedingly material. The statement made by said witness about which he was cross-examined, and which statement was offered in evidence, materially contradicted the testimony of the witness as given upon the trial. We think it not a valid objection to the cross-examination that the contradictory statements asked about were made by said witness, out of the presence and hearing of the appellant. The purpose and effect of this testimony was properly limited by the court in his charge.

There are bills of exception in the record complaining of the action of the state’s attorney in holding before the jury a written statement purporting to have been made by the witness Charley Heavrin, and it appears that objections were made by appellant to the argument of said state’s attorney upon the ground that he was referring to the contents of said statement of Heavrin in a manner not justified thereby. The trial court refused this bill as originally presented to him, and prepared and filed one of his own. The court’s bill of exceptions presents nothing from which we can'infer any error or that discloses any injury to the appellant.

There appears also another bill of exceptions in the record containing the statement that the state’s attorney argued to the jury the contents of the written statement' made by Charley Heavrin ■ as original evidence, when in fact said contents were used only for the purpose of impeachment. This bill of' exceptions is refused by the court, and such refusal appears to have been acceptable, and appellant now makes no further contention regarding the matter.

The court refused a special charge to the effect that appellant had a right to go to the home of deceased on the- morning of December 5, 1921. In the bill of exceptions complaining of the refusal of this special charge no reasons are set forth why same should have been given, and none are known to this court. A charge that, if it reasonably appeared to appellant from the circumstances, as viewed from his standpoint, that deceased was about to shoot or inflict serious bodily harm upon him, he had the right to cut the deceased, appears to have been covered by substantially the same matter in a paragraph of the main charge.

We are of opinion that that part of the court’s main charge in which he limited the effect and purpose of the introduction of the statement made by the witness Charley Heavrin is not open to the objection that it was upon the weight of the testimony. Said limitation appears to be in about the usual form for a charge upon that subject.

This disposes of the contentions made on behalf of the appellant, and, finding no error calling for a reversal of the case, an af-firmance is ordered.

On Motion for Rehearing.

HAWKINS, J.

No new matters are presented in the motion for rehearing, but our attention is called to certain bills of exception in the record, and the correctness of our disposition of the points presented is questioned. We have again carefully examined the bills, and, in the light of the trial judge’s explanation, together with the entire record before us, we are confirmed. in the view that proper disposition was made of them in our former opinion. Relative to the refusal of the -special charge to the effect that defendant had a right to go to the home of deceased on the morning of the homicide, we have examined the court’s charge, and find no limitation therein on accused’s right of self-defense because of his presence at the home of deceased, or for any other reason. This court uniformly has held that no necessity arises for a charge on the right of accused to arm himself where no restriction is placed upon his right of self-defense, and the special charge refused in the present case seems to present an analogous question.

The motion for rehearing is overruled. 
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