
    BOZEMAN v. STATE.
    (No. 5438.)
    (Court of Criminal Appeals of Texas.
    Oct. 15, 1919.)
    1. CRIMINAL LAW &wkey;>530 — SIGNED CONFESSION ADMISSIBLE.
    In homicide prosecution, defendant’s signed confession, made in presence of sheriff,' county attorney, and one or two other officers, and witnessed as required by the statute when taken in the presence of officers, was properly admitted.
    2. Criminal law &wkey;>736(2) — Question WHETHER CONFESSION VOLUNTARY FOR JURY.
    ,In homicide prosecution, where defendant testified that he was induced to sign confession by sheriff’s promise of release and immunity froih prosecution, court, upon defendant’s request, should have submitted question of whether confession was voluntary.
    3. Criminal law <&wkey;781(2) — Instruction TO DISREGARD CONFESSIONS IF FOUND RESULT OF THREATS OR PROMISES.
    In homicide prosecution where defendant testified he was induced to sign confession by sheriff’s promise of release and immunity from prosecution, court upon defendant’s request should have instructed jury to disregard 'confession if it was found to have been responsive to promises and threats and inducements offered by sheriff.
    4. Criminal law <&wkey;1173(2) — Failure to SUBMIT ISSUE OF VOLUNTARY CONFESSION PREJUDICIAL ERROR.
    In homicide prosecution where defendant claimed that the killing followed a second act of misconduct of deceased toward defendant’s wife during a second interview of defendant with deceased, after deceased had promised on first interview not to repeat misconduct, failure to submit question of voluntary character of confession to jury and instruct jury to disregard confession if not voluntary, there being evidence of confession being procured by promises and inducements, was reversible "'error, though confession was introduced in rebuttal only, where confession failed to mention second interview; it being effective to impeach defendant.
    5. Homicide i&wkey;163(2) — Admissibility of EVIDENCE AS TO CHARACTER OF DECEASED.
    In homicide prosecution where deceased had been guilty of misconduct toward defendant’s wife, evidence thjit deceased had separated from his wife on account of his “running around after other women” hold admissible.
    6. Homicide &wkey;>160 — Evidence of attempt TO BORROW PISTOL ADMISSIBLE.
    In homicide prosecution, testimony that defendant had sought to borrow a pistol from witness was admissible without laying a predicate to impeach defendant, being original testimony to show preparation for the homicide.'
    7. .Criminal law &wkey;>448(12) — Evidence inadmissible AS OPINION OF WITNESS.
    In prosecution for murder, where defendant had killed deceased during interview in which he had complained to deceased of deceased’s insulting language to his (defendant’s) wife, evidence of a statement by a witness to defendant that the language used by deceased would not justify an assault by defendant, and that defendant should abandon the controversy, was inadmissible, being mere opinion of witness.
    S. Criminal law &wkey;>351(8) — Evidence of MOTIVE FOR FABRICATION OF EVIDENCE.
    In murder prosecution, where defendant’s claim that the killing- occurred during second interview with deceased as to a second act of misconduct of deceased toward defendant’s wife was denied by prosecution, evidence of a statement of witness to défendant, following first misconduct of deceased and prior to second misconduct, that defendant had lost his right to /act when he first met deceased after receiving information as to first misconduct, was admissible to show motive for fabrication of evidence as to the second interview.
    9. Homicide &wkey;>199 — Evidence of immoral CONDUCT OF WIFE WITH ANOTHER THAN DECEASED ADMISSIBLE.
    In murder prosecution where defendant sought to mitigate offense on ground that deceased had insulted defendant’s wife, evidence that defendant’s wife had been guilty of specific acts of immoral conduct with another person of which defendant had knowledge prior to the killing was admissible.
    10. Criminal law t&wkey;829(5) — Instruction AS TO SELF-DEFENSE SUFFICIENT.
    In homicide prosecution, cburt, having given an unqualified charge upon the law of self-defense, was not requited to instruct jury upon defendant’s right to arm himself before seeking deceased for interview as to deceased’s misconduct with his (defendant’s) wife.
    Appeal from District Court, Falls County; A. M. Blackmon, Judge.
    Rufus Bozeman was convicted of murder, and he appeals.
    Reversed.
    Frank Oltorf and Nat''Llewellyn, both of Marlin, for appellant.
    E. A. Berry, Asst. Atty. Gen., for the State.
   . MORROW, J.

The appellant shot and killed Harvey Xoung, for which he was indicted and convicted of murder, and his punishment assessed at confinement in the state penitentiary for a period of 15 years.

The jury was instructed -upon the law of murder, manslaughter, and self-de/fense. The. appellant, accompanied by one Myers, went into the place of business of the deceased, called him aside and engaged him in conversation, and shot him several times with a pistol. An eyewitness for the state testified that prior to the shooting the deceased mad<? no demonstration against the appellant. The appellant’s theory and testimony was to the effect that on the day preceding the homicide his wife had informed him that the deceased had come to her house and made indecent proposals to her; that appellant had talked to the deceased after receiving this information, and the deceased had promised not to return to the premises of the appellant or to speak to his wife. Appellant claimed in his testimony that, according to information given him by his wife, the deceased disregarded this promise and returned to the appel-. lant’s premises and again Was guilty of insulting conduct towards the wife of the appellant. Then, on the occasion of the homicide* he had armed himself and sought the deceased in his premises to seek an explanation of his subsequent conduct in going to the house of the appellant, and that the deceased became angry and made a demonstration to strike the appellant with a hammer, when the firing began.

After the development of appellant’s case, the state in rebuttal introduced in evidence a written confession, signed by the appellant and witnessed as required by the statute when taken in the presence of officers. The confession was written by the county attorney in the presence o£ the sheriff and one or two other officers in the nighttime. The appellant testified, in substance, that the sheriff came to him in jail between 10 and 11 o’clock at night, and said to the appellant' that if he would make the confession he would release and not prosecute him; that he had been influenced by another to kill the deceased and ought not to be punished. The county attorney testified that he came to his office in response to information from the sheriff over the telephone that the appellant wanted to make a confession, and that for the purpose of taking it he came to his office, to which the sheriff brought the appellant. The county attorney said that he wrote the confession at the dictation of the appellant, and that during its preparation there were no promises or threats made the appellant. The county attorney disclaimed any knowledge as to what took place between the appellant and the sheriff prior to the making of the confession. Neither the sheriff nor the other officers who were present at the -making of the confession were used by the state to contradict the testimony given by the appellant touching the promises made by the sheriff. We think there was no error in admitting the confession as evidence, but that the complaint of the appellant of the refusal of the court, upon request of appellant, to submit to the jury the question of fact—whether the confession was voluntary or otherwise— and to instruct them to disregard it if it was found by them to have been responsive to promises and threats made by the sheriff, and the inducements by him offered appellant, was error. Hardin v. State, 211 S. W. 233; Knight v. State, 55 Tex. Cr. R. 243, 116 S. W. 60; Clayton v. State, 31 Tex. Cr. R. 489, 21 S. W. 255; Searcy v. State, 28 Tex. App. 513, 13 S. W. 782, 19 Am. St Rep. 851; Gallagher v. State, 24 S. W. 288; Morris v. State, 39 Tex. Cr. R. 376, 46 S. W. 253; Sparks v. State, 34 Tex. Cr. R. 88, 29 S. W. 264; Paris v. State, 35 Tex. Cr. R. 93, 31 S. W. 855; Blocker v. State, 61 Tex. Cr. R. 413, 135 S. W. 130.

The state’s counsel suggests that by reason of the fact that the confession was not used as original testimony, but was introduced in rebuttal only, the error mentioned was harmless. The confession introduced by the state mentions the fact that appellant had been informed by his wife of the first insulting conduct of the deceased toward her, but it omits any reference to the second transaction of that character. The evidence concerning the second occurrence was of vital importance. This is true by reason of the fact that after the first occurrence the appellant had talked with the deceased and reached an understanding that the deceased was not again to go to the home of appellant or to speak to his wife. The theory presented by the appellant’s testimony is that it was by reason of the fact that the deceased had violated this agreement, and had the second time gone to the home of appellant and approached his wife in an insulting manner, that the appellant sought the interview with the deceased which culminated in the homicide. The state used the written confession to contradict the appellant and impeach his statement on the stand touching the second act of misconduct of the deceased toward the wife of the appellant. The confession was effective for this purpose, because while it stated in considerable detail the occurrences preceding, leading up to, and attending the homicide, it failed to mention the second interview of the deceased with appellant’s wife. The state having thus made use of it, we cannot concur in the view that the refusal of the court to have the jury determine wheth-it was voluntary or not was harmless. Moreover, there are other statements .contained in the written confession tending to show' conspiracy with Myers, premeditation, and mal-, ice, which are in conflict with the testimony of appellant given upon the witness stand.

The court was not in error in refusing to permit the appellant to have the witness Cox state that the deceased had separated from his wife on account of his “running around after women.” Jones v. State, 38 Tex. Cr. R. 104, 40 S. W. 807, 41 S. W. 638, 70 Am. St. Rep. 719.

The testimony of the witness -Little that the appellant had sought to borrow from him a pistol was admissible in evidence without laying a predicate to impeach the appellant. The efforts of the appellant to procure a pistol were available to the state as original testimony to show preparation for the homicide.

The statement of the witness Buford to the appellant that the language used by by the deceased would not justify an assault by the appellant, and the advice given by the witness to abandon the controversy, were of a nature to give the witness’ impression and opinion, and should not' have been received. Denton v. State, 46 Tex. Cr. R. 193, 79 S. W. 560; Barbee v. State, 50 Tex. Cr. R. 426, 97 S. W. 1058; Welch v. State, 46 Tex. Cr. R. 528, 81 S. W. 50.

In view of the controversy touching the truth of appellant’s testimony in regard to the second interview of deceased with appellant’s wife, we think the statement by the witness Buford to the appellant after the first offensive conduct by the deceased and before the second act of like nature—-which statement was to the effect that appellant’s right to act had been lost or waived by his failure to act at the time he first met deceased after receiving information-—-was admissible. The circumstance tended to show motive for the fabrication of the evidence of the second transaction of the deceased with appellant’s wife.

There was no error in the effort made by the sta'te to prove that the appellant’s wife, with his knowledge, had been guilty of improper conduct with another person. Proof that appellant’s wife ha:d been guilty of specific acts of immoral conduct was not inadmissible, appellant having knowledge of the acts prior to the homicide, and seeking to mitigate his offence on the ground of insult by the deceased to his wife. Young v. State, 59 Tex. Cr. R. 139, 127 S. W. 1058; Richards v. State, 53 Tex. Cr. R. 412, 110 S. W. 432.

The court, having given an unqualified charge upon the law of self-defense, was not required to instruct the jury upon the appellant’s right to arm himself before seeking deceased for an interview. Williford v. State, 38 Tex. Cr. R. 393, 42 S. W. 972.

On another trial the charge on circumstantial evidence should be omitted. The error of the court in refusing to submit to the jury the issue of fact whether the confession was voluntary requires a reversal of the judgment, which is ordered. 
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