
    MITCHELL v. STATE.
    (No. 5274.)
    (Court of Criminal Appeals of Texas.
    March 5, 1919.)
    1. Criminal Law <&wkey;7&2(l) — Homicide <&wkey; 301 — Defense of Son — Instruction on Excessive Force.
    In prosecution for murder, defendant setting up that he acted in defense of his son, deceased having insulted the son and put his hand to his hip, when defendant struck and killed him with a breast yoke, it was improper to instruct on the law of excessive force; charge relating to an issue not raised by evidence, and calculated to impress jury with idea that, in the opinion of the court, force used was excessive.
    2. Criminal Law <&wkey;448(ll) — Evidence—Relations of Parties.
    In prosecution for murder, defendant setting up that he acted in defense of his son, evidence that parties did not seem on good terms, and that deceased seemed to be in a good humor, was admissible.
    3. Criminal Law &wkey;1144 (18) — Appeal—Denial of New Trial — Presumptions Supporting Action of Court.
    Court of Criminal Appeals is not in position to pass on correctness of ruling of trial court in denying defendant’s motion for new trial based in part on newly discovered evidence, where evidence which influenced action of court is not preserved by bill of exceptions or statement of facts; presumption being that, if affidavits attached to motion were used in evidence, they were met by controverting facts supporting court’s action.
    Appeal from District Court, Limestone County; A. M. Blackmon, Judge.
    W. H. Mitchell was convicted of murder, and appeals.
    Reversed.
    J. A. Tucker, Wm. Kennedy, Jas. Kimbell, and W. T. Jackson, all of Groesbeck, for appellant.
    Callicutt & Johnson, of Corsicana, J. E. Bradley, of Groesbeck, and E. A. Berry, Asst. Atty. Gen., for the State..
   MORROW, J.

Appellant was convicted of the murder of Arthur Jordan.

The homicide resulted from a blow with a breast yoke inflicted upon the deceased by the appellant. The theory arising from the state’s testimony was that, while the deceased was in a quarrel with the appellant’s son, the appellant made the attack which resulted in the homicide, preceded by no demonstration on the part of the deceased threatening injury to the son of appellant. The appellant’s theory, supported by his own testimony and that of several of his witnesses, was that the deceased was armed with a pistol and had provoked a quarrel with appellant’s son, stating, with an oath, that lie was going to kill him, immediately followed by a demonstration indicating that he was about to draw his weapon, and that the appellant going hurriedly to the rescue of his son, picked up a breast yoke, and struck one blow, with the intent only to save his son from injury. The parties were on the premises of the deceased at a gathering at about 3 o’clock in the morning. Appellant claimed that he was out in a pasture in an automobile for the purpose of smoking when the deceased came out and began a difficulty with a witness named Walts in which the deceased made a remark to the •effect that he was in possession of a pistol; shortly thereafter the deceased engaged in abusive language towards appellant’s son, and appellant got out of the car to prevent a difficulty between them; that some one else interfered, and he, thinking the difficulty had ended, started back to a wagon to lie down, when he heard the deceased cursing, and, looking back, heard him say to appellant’s son, “You God damn long-legged-son of a bitch, I am going to kill you”; that appellant then started toward them, ran over a breast yoke, picked it up, and struck the deceased. At the time he struck the hand of deceased was on his hip, he was near the appellant’s son, and the appellant, believing that his son was about to be killed, struck the blow to protect him.

Several witnesses testified that the deceased was armed with a pistol, some of them indicating that he had it1 in his hand at the time appellant struck him. One of these, appellant’s son, testified that the deceased approached him, called him a “long-legged son of a bitch,” and said, “I am going to kill youthat it was nighttime, but that he saw in his hand what he took to be a gun. He and deceased were about three or four feet apart, and in a few seconds after the remark was made the appellant struck the deceased while he was in the act of using ¡his pistol.

The court, in connection with his charge on self-defense, gave the following:

“As heretofore instructed, a reasonable apprehension of death or of serious bodily injury to defendant’s son at the hands of the deceased, Arthur Jordan, will excuse the defendant in using all force necessary to protect his son from death or serious bodily injury, but you are further instructed that the defendant was authorized to use only such force as was necessary, and no more force than was necessary, to prevent the death or serious bodily injury of his son, and would not be justified in proceeding beyond the point where danger to his said son existed, as viewed from his standpoint at the time he acted.”

Exception was made to this charge in a timely manner and is properly reserved. It has often been declared that under such circumstances as those detailed it is improper to instruct the jury on the law of excessive force for the reason that it relates to an issue not raised by the evidence and is calculated to impress the jury with the idea that in the opinion of the court the force used was excessive. Branch’s Criminal Law, § 451; Branch’s Ann. Pen. Code, p. 1071, § 1920. The reasons controlling this position are succinctly and accurately stated by Judge Ramsey in Carson v. State, 57 Tex. Cr. R. 396, 123 S. W. 590, 136 Am. St. Rep. 981, and by Judge Davidson in Huddleston v. State, 54 Tex. Cr. R. 93, 112 S. W. 64, 130 Am. St. Rep. 875. We deem it unnecessary to repeat them.

The propriety of receiving evidence that the parties did not seem on good terms, and that the deceased seemed to be in a good humor, where they are relevant to the issues involved, has often been recognized. Bennett v. State, 39 Tex. Cr. R. 648, 48 S. W. 61; Logan v. State, 53 S. W. 694; Owens v. State, 52 Tex. Cr. R. 69, 105 S. W. 513; Gablor v. State, 49 Tex. Cr. R. 627, 95 S. W. 521; Branch’s Ann. Pen. Code, § 132. The complaint of this evidence is not sustained.

It appearing from the record that the appellant’s motion for new trial, based in part upon newly discovered evidence, was controverted, and that the trial court heard evidence thereon, this court is not in a position to pass upon the correctness of his ruling in deciding the issue against appellant, where the evidence which influenced the action is not preserved by bill of exceptions or statement of facts. On appeal the presumption, under the circumstances, is that, if the affidavits attached to the motion for new trial were used in evidence, they were met by controverting facts sufficient to support the trial court’s action. Lopez v. State, 208 S. W. 167; Reyes v. State, 196 S. W. 532, and cases listed.

Tire error in the charge mentioned requires a reversal of the judgment, which is ordered.  