
    BAYER v. STATE.
    (No. 7770.)
    (Court of Criminal Appeals of Texas.
    Nov. 21, 1923.
    Rehearing Denied Jan. 9, 1924.)
    1. Homicide <&wkey;340'(4) — Instruction held harmless.
    Where one accused of murder was convicted of manslaughter, a charge leaving the jury to determine whether, under the circumstances stated,' he was guilty of murder or manslaughter, could not be complained of by him on the ground that it should have told the jury that under such circumstances he would be guilty of manslaughter only.
    2. Criminal law &wkey;>829( I) — Refusal of special charge covered not error.
    It was not error to refuse a special charge embracing matters covered in instructions given.
    3. Homicide &wkey;> 120 — Self-defense in second shot depended upon self-defense in first shot.
    The right of accused to follow deceased and shoot her the second time held to necessarily depend upon whether he was acting in self-defense when firing the first shot.
    4. Homicide <&wkey;300(3) — Charge on threats, followed by demonstration of intent as justifying killing, held not reversible.
    While Penal Code 1911, art. 1143, as to prior threats, justifies killing one who “by some act then done manifests an intention to execute the threat so made,” and it is always better to follow the statutory language in charging thereon, yet a charge that accused would be justified in acting upon some “demonstration” or “movement” or some “statement” indicating that his adversary was about to execute a previous threat was not reversible error, in casting a more onerous burden on accused than required by law, as limiting to particular acts of deceased the right to defend because of threats.
    5. Homicide <&wkey;300(2) — Charges on self-defense and threats need not be in one paragraph.
    It is not the law that charges on the law of self-defense and the law as to threats should be submitted together, that is, embraced in one paragraph; it being sufficient that both phases of the law be submitted if both are raised by the evidence.
    6. Homicidio <&wkey;336 — Incidents- of trial held harmless where accused convicted of manslaughter.
    Where accused was convic.ted of manslaughter on a murder charge, the fact that the sheriff remarked to one of the jurors that a woman they passed on the street was the wife of accused, who had admitted on the stand that he was not living with his wife, and a remark by one of the jury that the Ku Klux Klan should have handled the case, held not prejudicial.
    7. Criminal law <&wkey;854(9) — Jury held not separated by position of cot of one juror in hail.
    Code Or. Proc. 1911, art. 745, as to separation of jury, held not violated by position of cot on which a juror slept, in or near door between hall and courtroom in which the other jurors slept.
    On Motion for Rehearing.
    8. Criminal law &wkey;>982 — Application for suspended sentence raises issue of accused’s reputation at time of trial.
    When an application for suspended sentence is filed, the question thereby raised as to accused’s reputation as a law-abiding citizen relates to his reputation at the time of trial, and inquiry is not restricted to a time prior to the commission of the offense.
    Appeal from District Court, Palls County; Prentice Oltorf, Judge.
    Peter Bayer was convicted of manslaughter, and appeals.
    Affirmed.
    Prank Oltorf and Ben H. Rice, Jr., both of Marlin, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appellant was indicted for murder growing out of the killing of Sadie Peoples. Conviction for manslaughter resulted, with an assessed punishment of two years in the penitentiary.

Deceased was killed by being shot with a pistol; the first of two shots inflicting only a slight flesh wound in the shoulder, the other causing death. Appellant is a white man, having come to this country from Sil-icia. Deceased was a negro woman. The first shot was fired at the entrance of the Yilna Pish Market in the city of Marlin; the second being fired while appellant was in the dining room of the Yilna Restaurant and deceased in the kitchen. The shooting took place about 9:80 o’clock in the morning. The evidence shows that for some considerable time 'appellant had been criminally intimate with deceased. The theory of the state, supported by evidence, was that the killing resulted from jealousy on appellant’s part because deceased was trying to get him to cease his attentions to her and was bestowing her favors upon other parties. The defensive issues were raised by appellant’s own evidence. He testified substantially that deceased had persuaded him to intrust her with the custody of $2,000 in cash with the argument that appellant-was known to keep money on his person and was likely to be killed and robbed; and thereafter appellant demanded the return of the money and was seeking to secure it at the time of the killing. His evidence raised the issue of self-defense from apparent danger, as well as against the execution of previous threats, and also raised the issue of manslaughter. We omit any extended recital of the facts, but content ourselves by stating the issues raised thereby.

Bills of exception from 1 to 14, inclusive, present numerous complaints at paragraphs 18, 19, 20, and 21 of the charge, and at the refusal to give special charges. Some of the complaints appear to have no basis whatever, and if ground for them existed at the time the objections were filed, they must have been eliminated by amending the, charge. Complaint is made that the court committed error in paragraph 21 of his charge in leaving the jury to determine, under the circumstances stated, whether appellant was guilty of murder or manslaughter; it being insisted that the jury should have been told that under such circumstances he would only be guilty of manslaughter. If the verdict had been for murder, then this contention might properly demand our consideration; but the conviction being for manslaughter only, we think a discussion of it unnecessary, because, whether strictly correct or not, it could have resulted' in no harm to accused. The cases cited by appellant will be found upon examination to be those where conviction was for murder.

Appellant requested a special charge embracing the same matters covered in paragraph 20 of the instructions. We think the refusal of the special charge presents no error. The subject seems to have been fairly presented in the main charge. Neither do we think the criticism justified that paragraph 20 places the burden of proof on appellant or unduly limits his fight of self-defense, or that same can be regarded as a negative presentation of the matter; when considered in connection with paragraphs 18 and 19 immediately preceding, it is not subject to such construction. Appellant’s right to follow deceased1 and shoot her the second time necessarily depended upon whether he was acting in self-defense when he fired the first shot. As supporting the criticism for embracing this proposition in paragraph 20 of the charge, we are cited to McMahon v. State, 46 Tex. Cr. R. 540, 81 S. W. 296; St. Clair v. State, 49 Tex. Cr. R. 479, 92 S. W. 1095; Coker v. State, 59 Tex. Cr. R. 241, 128 S. W. 137; Sargent v. State, 35 Tex. Cr. R. 325, 33 S. W. 364; Jones v. State, 44 Tex. Cr. R. 405, 71 S. W. 962; Duke v. State, 61 Tex. Cr. R. 19, 133 S. W. 433; Foster v. State, 67 Tex. Cr. R. 5, 148 S. W. 583. As we read the opinions, they do not sustain the complaint. On the contrary, the St. Clair and Foster Oases, supra, are direct authority upholding the correctness of the charge as given. _

The nineteenth paragraph of the charge is assailed as casting a more onerous burden on accused then required by the law as limiting to particular acts of deceased the right to defend on the ground of threats. The contention is made that as article 1143, Penal Code, justifies one in killing an adversary who has previously made threats against his life, and who at the time of the tilling “by some act then done manifested an intention to execute tbe threat so made," the court was in error in directing the jury that appellant would be justified in acting upon some “demonstration” or “movem'ent” or some “statement” on the part of deceased from which it appeared to appellant from his standpoint at the time that deceased wras about to execute the threat. We think it always better in charging upon this subject to follow the language of the statute. However, there does not exist in the charge complained of the vices pointed out in Miles v. State, 18 Tex. App. 156; Bonner v. State, 29 Tex. App. 223, 15 S. W. 821; Swain v. State, 48 Tex. Cr. R. 98, 86 S. W. 338; Graves v. State, 58 Tex. Cr. R. 42, 124 S. W. 676; Clark v. State, 51 Tex. Cr. R. 519, 102 S. W. 1136; Burnam v. State, 61 Tex. Cr. R. 51, 133 S. W. 1045. The charge in the present case does not restrict appellant’s right to act upon some particular demonstration, movement, or statement, but justifies him in acting upon any kind of demonstration, movement, or statement from which it appeared to appellant, viewed from his standpoint at thee time, that deceased was about to execute the threat. The language chosen by the learned trial judge appears broad enough to embrace any act verbal or otherwise on deceased’s part. It covered every phase of the evidence raising the issue- of defense against the execution of threats, and we think a reversal would not be demanded because other words were used than those embraced in the statute. We have been unable to discover how any injury could have resulted to accused, or that any restriction or limitation of his rights resulted from the charge as given.

The complaint that the charges on the law of self-defense and the law as to threats should have been submitted together is without merit. As we understand the criticism, it is that the two subjects should have -been embraced in one paragraph. The authorities cited in' support of the proposition do not so hold. They are authority for the proposition that when the evidence raises the issue of self-defense from apparent danger, and also because of previous threats, both phases of the law should be submitted. This was done in the present instance.

Appellant filed an application asking that in the event he was convicted of manslaughter he should be granted a suspended sentence. He placed witnesses upon the stand and proved, by them his general reputation as a peaceable law-abiding citizen prior to the date of the killing. Upon cross-examination these witnesses were asked by the state if they knew the general reputation of appellant at the time of trial. Over objection they answered that it was bad. When the application for suspended sentence was filed, appellant by that act put in issue his character, and inquiry on the part of the state could not be limited to his reputation prior to the time of the commission of the offense. As it related to his application for suspended sentence, his character at the time of trial was under investigation. An expression contrary to this proposition may be found in Caruth’s Case, 77 Tex. Cr. R. 150, 177 S. W. 973; but this does not seem to have been followed. The opinion in that case was rendered in 1915. In 1918, in Williams v. State, 83 Tex. Cr. R. 26, 201 S. W. 188, the same court announced positively that, where suspended sentence was sought, the character of accused at the time of trial was the point at issue. This holding was followed in Mason v. State, 90 Tex. Cr. R. 560, 236 S. W. 93. The question is analogous to the investigation of the reputation of a witness for truth and veracity. The matter there pertinent is what is his reputation now, at the time he testifies, because it is now the jury must determine what weight to give his testimony. This point was discussed at some length in Cassel v. State (Tex. Cr. App.) 249 S. W. 1079. So in the matter of suspended sentence, the jury must determine whether at the time of trial accused’s character warrants such recommendation. If one accused of crime puts his character in issue in the absence of an application for suspended sentence, then the rule invoked by appellant would apply, and the inquiry should be restricted to a time prior to the commission of the offense for which he is on trial. Several witnesses testified that appellant’s general reputation as a peaceable, law-abiding citizen was good. It was the contention of the state that these witnesses based their evidence upon business dealings with appellant and that he did not associate with witnesses or with people with whom they associated. They were asked upon cross-examination by the state if they knew what appellant’s reputation was in that part of the city where he lived, and further if it was a fact that appellant did not associate with white people in the town. Objection was sustained to some of these questions, and to others the witnesses answered that they did not know what the reputation of appellant was in that part of the city where he resided. We have been unable to discover any error committed by the court in his ruling upon the matter complained of, nor that the questions to which objection was sustained were so obviously harmful as demands a reversal. Where a witness is tendered to support the good rep-putation of an accused or a witness, the opposing party has a right upon cross-examination to extend their investigation to the, sources of information of the supporting witness. If it could be shown that the witness knew the reputation of the party inquired about, was bad among the people in the immediate community where he resided, it would be pertinent for the jury to-know1 this, as weighing the testimony of the supporting witness. However, the witnesses having said they did not know the reputation of appellant in the particular locality of his residence, the matter resolves itself into whether the question itself was erroneous and harmful. We have not been able to persuade ourselves that such is the ease.

While the case was upon trial, the sheriff was taking the jury across the street, and, seeing- appellant’s wife, remarked to one of the jurors walking near him, “That is Peter Bayer’s wife.” No comment was made about it in any manner, and the matter seems never to have been referred to by the juror. Appellant’s wife was not a witness. He admitted from the witness stand that he was married but was not living with his wife. After the case had been submitted to the jury, one of them remarked that the case was one the Ku Klux Klan should have handled, and if they had the jury would not have been bothered with it. Some of the jurors did not hear the statement, and when the remark was made another juror said that had nothing to do with the case. No.further reference seems to have been made to it. We are of the opinion that the verdict reflects no injury to appellant by the two incidents mentioned.

It is asserted in the motion for new trial that article 745, C. O. P., inhibiting the separation of the jury in a felony case, was violated, and that by reason thereof appellant was entitled to a new trial. All of the jurors (except one who was out of the county) testified upon the hearing of the motion for new trial, as well as did the officer in charge of the jury. The facts show that sleeping accommodations for the jury were provided by furnishing cots, which were scattered about the district courtroom. The deputy sheriff had his cot upon the platform where the judge’s stand was located. On abcount of the mosquitoes being troublesome, the jurors attempted to place their cots near the windows and doors in order that the air -passing through would relieve them of this annoyance. On two of the nights during the progress of the trial, the juror Koon placed his cot in or near .the west door of the courtroom leading into the hall. Prom this hall the stairway led to the lower floor of the courthouse, the outside doors to which were unlocked. There is some conflict in the testimony as to just the position of the cot. Some of the jurors say the head of the cot was in the door, and others say it was not more than three or four feet from the door in the hall. Those whose cots were situated near the doorway testified that they talked to the juror Koon while he occupied his cot after they had retired for the night. The testimony of the deputy sheriff was to the effect that from his position on the platform he could see the head of the juror Koon while he was lying down, but if he was sitting up on the side of the cot he would be out of his sight. All the jurors, as well as the officer, testified that at no time during the night did they hear any conversation between the juror Koon and any other party save with other jurors, and heard no one moving in the hall except the courthouse janitor, who would be there early in the morning. The juror Koon himself testified that he never left his cot or communicated' with any person other than the jurors; that from his position at or near the door he could see some of the other jurors on their cots scattered about the courtroom. The janitor testified that on two mornings when he went up to clean up the courtroom, he found the juror Koon on his cot in the hall. He placed the head of the cot not more than four feet away from the door at these times. After hearing all the evidence introduced upon the motion for new trial, the court finds and certifies as a fact that “there was no communication of any kind by the juror Koon with any person other than the other jurors.”’

We do not think the facts show such a separation of the jury as was contemplated by the statute. See Watson v. State, 82 Tex. Cr. R. 805, 199 S. W. 1113, and the authorities therein cited; also, Wood v. State, 84 Tex. Cr. R. 187, 206 S. W. 349. If there had been a separation, the state, we think has discharged the burden thus placed upon it and shown that no injury resulted by the conduct complained of. The learned trial judge so found after hearing much evidence produced upon hearing the motion, and we do' not feel justified in disturbing his finding.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant strenuously insists that we erred in not upholding the contentions evidenced by his assignments of error from 8 to 12, and we have again reviewed the matters referred to which are in bills of exception Nos. 15 to 20, inclusive. We again repeat that when an application for suspended sentence is filed, the question thereby raised as to the reputation of the accused for being a law-abiding citizen relates to his reputation at the time of trial. Smith v. State (Tex. Cr. App.) 252 S. W. 562. It follows that the contention of appellant that error was committed in allowing the state to cross-examine his character witnesses, and by them show that his reputation at the time of trial was bad, is not sound. This relates to bills of exception Nos. 15 and 16. The remaining matters consist of complaints against the asking of questions. We are not led to believe upon mature consideration that there was any reversible error shown in this matter. We do not think the questions complained of could by their being asked inject such harmful matter into the record as to raise a presumption of injury to the accused.

The motion for rehearing will be overruled. 
      
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