
    LIVINGSTON v. STATE.
    (No. 9495.)
    (Court of Criminal Appeals of Texas.
    Nov. 18, 1925.
    Rehearing Denied Eeb. 24, 1920.)
    1. Homicide <&wkey;!69(7) — Evidenoe of vulgar statements by deceased with reference to his conduct with women generally, unknown to defendant, held properly excluded.
    In prosecution for homicide, claimed to have resulted because of defendant’s belief that deceased seduced his daughter, evidence of vulgar and lascivious statements made by deceased referring to his conduct with women generally, but unknown to defendant, was properly excluded as tending only to put deceased in bad light before jury.
    2. Homicide <&wkey;>!8l — Testimony by physician of treating defendant’s daughter for venereal disease before alleged seduction by deceased not error, where defendant knew daughter was so treated.
    In' prosecution for homicide, claimed to have resulted because of defendant’s belief that deceased seduced his daughter, where defendant knew at time of killing and prior to time of alleged seduction that his physician made statements to him from which he must have reasonably inferred that his daughter had been treated for venereal disease, it was not error to permit physician to testify that daughter was so treated by him prior to time of alleged seduction.
    On Motion for Rehearing.
    3. Criminal law <&wkey;396(2) — Inquiry by state as to conversation previously brought out by defendant, which witness only denied having made in language of defendant’s counsel, was not error (Code Cr. Proc. 1925, art. 728, being Vernon’s Ann. Code Cr. Proc. 1916, art. 811).
    Where defendant questioned witness as to conversation with deceased concerning latter’s connection with defendant’s daughter, which conversation witness did not deny, but claimed not to have occurred in language used by defendant’s counsel, it was not error, in view of Code Cr. Proc. 1925, art. 728, being Vernon’s Ann. Code Or. Proc. 1916', art. 811, for state to inquire into same subject and elicit from witness what the conversation really was.
    Commissioners’ Decision.
    Appeal from Criminal District Court, Tar-rant County; Geo. E. Hosey, Judge.
    C. N. Livingston was convicted of manslaughter, and he appeals.
    Affirmed.
    McLean, Scott & Sayers, of Port Worth, for appellant.
    R. K. Hanger, Cr. Dist. Atty., and Phillips, Brown & Morris, all of Port Worth, Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The appellant was convicted in the district court of Tarrant county for the offense of manslaughter, and his punishment assessed at two years in the penitentiary. It seems from the record, that the appellant claimed to have killed the deceased because of the fact that he believed that deceased had seduced his daughter. The evidence fails to raise the issue of self-defense and there was no charge on this issue and no contention on appellant’s part that such charge should have been given.

There are but three questions presented for the consideration of this court by the record. Appellant’s first contention is that the court erred in permitting the state to prove by the witness L. K. Davis, the father of deceased, a conversation between said witness and deceased concerning deceased’s connection with the daughter of the appellant; it being shown that said conversation was out of the presence and hearing of the appellant and that he had no knowledge thereof. This testimony was, in our opinion, admissible. The record discloses that the matter was gone into originally by the appellant himself. His counsel asked the witness Davis on cross-examination if, while he was on the federal grand jury with Mr. House and Mr. Bryson and at a time subsequent to the homicide, he did not make a certain statement to thfem. In order that the matter may be accurately set out, we quote from the record as follows:

“Question: Didn’t you tell these two named gentlemen that your boy, Alfred, came to you and told you he was in some trouble, and told you what it was, and you said to him, ‘Son (meaning the deceased), I thought I tried to teach you to treat the other fellow’s sister like you wanted them to treat your sister; you had better leave?’
“Answer (by Witness Davis): No sir; I didn’t tell it exactly that way.”

Appellant’s counsel then asked him the following question:

“Question: Didn’t you further state to Mr. Bryson upon that occasion that, when the officers came to arrest your son, Alfred, on the seduction charge, you stated to the officers that the boy (Alfred) was out; that they couldn’t find him; that he had run off, but that you would bring him in?
“Answer (by witness Davis): I didn’t make it that way. I do not know Mr. Bryson.”

The matter was left in this condition until the state on redirect examination asked Mr. Davis the following question:

“Question: What did you tell him (meaning, what did you tell Otis House and Mr. Bryson, and after the homicide, in the federal building) ?
“I told Mr. House, after he found out I was the father of the boy that was killed, that about 10 days prior to the killing my boy came to me, and says, ‘Papa, Jack is in trouble’— that is my other boy, and I said, ‘What is it, Son?’ and he said ‘Lloyd Tillery is threatening to kill him.’ I said, ‘Is that a fact?’ and he says, ‘Yes, sir!’
“I told Mr. House that 10 days prior to the hilling my son Alfred came to me and said, ‘Papa, I am in trouble;’ and I says, ‘What is it, Son;’ and I said, ‘Son, you know what I have always told you; I have always told you to treat the other boy’s sister like your own;’ and he says, ‘Papa, I have done it, and can prove that;’ and I says, ‘If you can, I will stay with you; but, if you can’t, I would advise you not to stay here;’ and he had proved it.”

Prom the foregoing statement it seems clear to us that the questions asked by the state in redirect examination of this witness were clearly admissible under article 811, Vernon’s O. G. P. We think that the foregoing questions and answers show beyond controversy that the witness was simply permitted to explain exactly what he had said in the conversation inquired into by the appellant. Barber v. State (Tex. Cr. App.) 69 S. W. 516, and cases there cited; Streight v. State, 138 S. W. 742, 62 Tex. Cr. R. 464; Ball v. State (Tex. Cr. App.) 36 S. W. 448; 1 Wharton’s Crim. Evidence (10th Ed.) p. 1000.

Appellant’s second complaint is that the court erred in failing to permit the appellant to prove certain vulgar and lascivious statements made by the deceased with reference to his conduct with girls and women generally. This testimony was offered through the witness Lassiter, and the record discloses that deceased did not mention appellant’s daughter, but only spoke of women generally. It also affirmatively shows that the witness Lassiter did not tell appellant anything about this conversation and there is no contention that appellant knew anything about it. We think this testimony was properly excluded. It could have done nothing more than to have placed the deceased in a bad light before the jury, and it is well settled in this state that this method of procedure is improper where the matter under inquiry is unknown to the appellant, and where it has no relation to the matters in controversy on the trial where such testimony is offered.

Appellant’s third complaint is that the court erred in permitting a certain physician to testify that in August, 1922, a date prior to that on which it is contended the deceased seduced appellant’s daughter, said daughter was treated by said physician for gonorrhea. In the absence of knowledge of this fact on the part of the appellant, it would be necessary to decide whether the testimony would have been admissible, but, in addition to the foregoing testimony, this same physician also stated that the appellant had talked to him before the killing about the disease for which his daughter was being treated, and, while the physician testified that he told the appellant that he did not know that said daughter had such disease, yet the conversation disclosed by the bill of exceptions is entirely sufficient to show that the physician made statements 'at that time to the appellant that were entirely sufficient to charge hint with notice that his daughter was being treated for a venereal disease; in other words, we think it clear from this record that the bill of exceptions complaining of this matter shows on its face that the appellant was in possession of sufficient facts to warrant the statement that he knew at the time that the deceased was killed and prior to the time that he claims that the deceased seduced his daughter that this physician had made statements to him from which he must have reasonably inferred that his daughter had been treated for a venereal disease. This being true, we hold that no reversible error is shown in regard to the matter.

Erom what has been said above, it follows that in our opinion the judgment of the trial court should be in all things affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court.

On Motion for Rehearing.

HAWKINS, J.

In his motion appellant urges that we were in error in the disposition made of the question raised by his first bill of exception. It appears that appellant asked the witness Davis (father of deceased) if he had not made certain statements to named parties at a designated time and place. Witness did not deny making the statement in toto, but claimed not to have made it in the way intimated by the question. Thus the jury could have assumed that the statement was substantially that attributed to him by the questions. Appellant seemed content to let it rest in this condition. Appellant having gone into the conversation, we see no impropriety in permitting the state to inquire into the same subject and elicit from the witness what the conversation really was. The procedure followed is sanctioned by article 728, C. C. P. (1925 Revision), being article 811, Vernon’s C. O. P. of 1916. Many authorities will be found collated in the notes under old article 811 in Vernon’s C. C. P., and under section 91, Branch’s Ann. Texas P. O. We think the facts elicited do not bring this case under any of the exceptions recognized.

The niotion for rehearing is overruled. 
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