
    BOOTH v. STATE.
    (No. 6277.)
    (Court of Criminal Appeals of Texas.
    Nov. 9, 1921.
    Rehearing Denied Dec. 7, 1921.)
    1. Criminal law &wkey;>l 170!/2(3)— Judgment not .reversed because of improper question, not answered, unless injury is obvious.
    Judgment will not be reversed because of improper question propounded to witness not permitted to answer question, unless the injury to appellant by reason thereof is. obvious.
    2. Homicide &wkey;sl99 — Testimony held admissible in prosecution for assault with intent to murder to show grade of offense.
    In prosecution'of director of bank for assault with intent to murder bank president, growing out of controversy as to director borrowing money from bank without paying interest, in which director’s testimony showed that bank’s refusal to make the director further loans without payment of interest was due to the president alone, testimony of witness, who had become a director after such action had been taken by the bank, that he did not know that the bank’s money had been used without interest until the directors had instructed the officer to bring suit to collect tbe interest, held admissible on the issue of defendant’s mental attitude as determining the grade of the offense.
    3. Homicide <@=338 (5) — Admission of evidence held harmless in view of grade of offense of which defendant was convicted.
    In prosecution for assault with intent to murder, the admission of evidence admissible, if at all, on the issue of defendant’s mental attitude toward prosecuting witness, was harmless, where the defendant was found' guilty merely of aggravated assault.
    4. Homicide <@=>339 — Exclusion of evidence relevant, if at all, on issue settled in defendant’s favor, held harmless.
    In prosecution for assault with intent to murder, exclusion of evidence as to contract between defendant and prosecuting witness, which was relevant, if at all, merely to show defendant’s state of mind, brought about by prosecuting witness’ failure to perform his part of the contract, held harmless, if error, on appeal from judgment following conviction for aggravated assault, since the only issue on which it was relevant was settled in defendant’s favor.-
    5. Criminal law <&wkey;723(I) — Prosecuting attorney’s reference to popular statement that money can beat any case held improper.
    Prosecuting attorney’s statement in opening-argument that, “You can go down on the streets and hear men say you can take money and beat any case,” held improper.
    6. Criminal law <&wkey;l 171 (I) — Prosecuting attorney’s statement to jury as to a popular saying that money can beat any case held harmless.
    In prosecution of one banker for assault with intent to murder another banker, prosecuting attorney’s statement that, “You can go down on the streets and hear men say you can take money and beat any ease,” which the court instructed the jury to disregard, held, not ground for reversal, not being calculated to prejudice jurors, in view of the fact that defendant and prosecuting witness were wealthy.
    7. Homicide <@=>309(7) — Instruction as to self-defense, in prosecution for assault with intent to murder, held proper.
    In prosecution for assault with intent to murder, instruction as to right of self-defense, as applied to both ah assault with intent to kill and an aggravated or simple assault, held proper.
    8. Homicide &wkey;>340(4) — Instruction as to provocation arising at time of assault held harmless in view of verdict.
    In prosecution for assault with intent to murder, instruction limiting provocation to one arising at the time of the assault was harmless, where conviction was merely for aggravated assault.
    Appeal from District Court, Falls County; Prentice Oltorf, Judge.
    Z. A. Booth was convicted for aggravated assault, and he appeals.
    Affirmed.
    Spivey, Bartlett & Carter, of Marlin, for appellant.
    B. H. Hamilton, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Appellant was indicted for assault with intent to murder one H. -D. Crosby. The conviction was for aggravated assault, and punishment fixed at a fine of $500.

In November, 1918, and for some time prior thereto, appellant was, and had been, president of the - First National Bank of Rosebud, owning a considerable block of stock in the bank. In November, 1918, he sold 135 shares of his stock to Crosby, and the latter became president of the bank. Appellant retained quite a large interest in the institution. The record discloses that from the time Crosby became connected with the business, and indeed before his deal with appellant was closed, their relations became strained, and this, was intensified as time progressed. This arose over certain loans which the bank had out, and the method of handling a cotton account. Appellant claimed that Crosby was informed of all the details before he purchased the shares; Crosby, on the other hand, claimed that certain statements made to him by appellant relating thereto were not correct, and that the true state of affairs only came to his (Crosby’s) knowledge after he became an officer of the bank. Each was accusing the other of causing customers to withdraw their business. The record shows that several assaults were made by appellant on Crosby prior to the assault on May 17, 1920, upon which this prosecution was based. The foregoing is a condensed statement from a record of 148 pages, the greater portion of which is taken up with minute details of handling certain loans and cotton accounts, and the reasons why it was done in particular ways.

Bills of exceptions 1 and 3 complain of certain questions propounded to witnesses. Objections were sustained to the questions, and the jury instructed to disregard same. The witnesses were not permitted to answer, and the questions themselves were not of that obviously harmful character which would appeal to the court as carrying with them injury to appellant. It is in exceedingly rare instances where this court would feel called upon to reverse a case solely because counsel may have propounded an improper question.

Bill No. 7 recites that it appeared in evidence that appellant was a member of a partnership which had borrowed money from the bank with which to buy cotton, and had paid no interest on such loans, as it was to the interest of the stockholders to encourage the purchase of cotton by said firm as it increased deposits of the bant; that Orosby in the spring of 1919 had required the cotton account to be closed, and thereafter appellant did not further participate in the purchase of cotton; that appellant had introduced evidence that directors of the bant, other than appellant and Threadgill, lap-proved of the action of the bank in loaning this money without interest. (Threadgill being a member of the cotton firm, and both he and appellant being directors and officers of the bank.) In rebuttal the state offered J. F. Wright, who testified that he became a director of the bank in the summer of 1919; that he, as such director, had no knowledge that appellant and his partners were borrowing money from the bank without interest. Objection was made to this testimony because Wright did not become director until after the cotton account was closed. The court appended to the bill the explanation that appellant had offered testimony tending to show that the action of the bank regarding the cotton account was all taken by Oros-by alone as president, and the - witness Wright testified that the directors instructed the officers to bring suit to collect the interest on the cotton account, and in that connection the witness testified that up to that time he did not know the bank’s money was used without interest. As explained by the trial judge, we see no error in admitting this testimony. Crosby’s efforts to change the policy of the bank in any respect was no justification for the assault; but in so far as such changes may have reflected on the former officers, it was admissible on the issue of appellant’s mental attitude as determining the grade of offense. The jury having found him guilty only of aggravated assault, we are unable to see how it could have injuriously affected appellant, even if improperly admitted. Bill of exceptions No. 8 is to substantially the same effect as the one just discussed, except that it discloses that E. E. Taylor, the witness being interrogated, was a director of the bank prior to appellant’s connection with it. The trial judge qualifies the bill by stating that when this was discovered he instructed the jury not to consider Taylor’s testimony. As so qualified, no error is shown.

Bill No. 4 is entirely too long to be copied in full. After setting out the entire purchase contract between Orosby and appellant, it shows that the latter, while testifying, offered to testify in detail as to a conversation between himself and Orosby explanatory of part of the contract. Upon objection he was not permitted to do so. The trial judge certifies in explanation that appellant did testify to substantially the same facts in other parts of his testimony. We fail to see the relevancy of this evidence, unless it be on the sole issue of appellant’s mental state brought about, as was evidently the contention, by Orosby not carrying out his contract, and his attitude generally towards appellant. If it had been excluded, we can see no ground of complaint, because the only issue to which it was relevant was settled in appellant’s favor.

While the assistant county attorney was making his opening argument he used the following language:

“You can go down on the streets and hear men say, ‘You can take money and beat any case.’ ”

It does not appear from the bill in what connection it was used; but immediately upon objection being made to the remark, the court instructed the jury to disregard sanie, and followed it with a written instruction to the same import. The same language used under dissimilar conditions may have quite different effects. The only case to which we are cited by appellant’s counsel in his brief is Sorrell v. State, 74 Tex. Cr. R. 100, 167 S. W. 376. The court, speaking through Miller, Special Judge, expressed disapproval of similar language. Sorrell was charged with rape. His family was wealthy; the alleged injured girl’s family just the reverse. Such language, under those circumstances, might have aroused prejudice in the mind of the jury. However, we can scarcely conceive how, in view of the entire record, it could have had such an effect in the instant ease where one banker was being tried for assaulting another. While the language was improper, yet, in the light of all the facts, we would not be warranted in reversing the case for such error.

Complaint is made of the fourteenth paragraph of the court’s charge. We do not copy it here on account of its length. We have been unable to agree with appellant's criticism of it. It appears to us very properly to tell the jury, in substance, if appellant intended to kill, in order to justify on the ground of self-defense the acts of the injured party must have been such as to cause appellant to believe he was in danger of losing his life, or suffering serious bodily. injury; but as applied to aggravated or simple assault, appellant would have a right to defend against any attack or apparent attack at the hands of the injured party, even though it was not of a character to threaten appellant’s life, or put him in fear of serious injury.

Complaint is made of the charge on manslaughter, or, as applied to this case, on aggravated assault, because limiting the provocation to one arising at the time of the assault. We find the jury were told that in determining the question of adequate cause they were to consider all the facts and circumstances in evidence. Before the issue of aggravated assault could arise from “adequate cause,” the statute requires some provocation at the time of the assault; but as it bears upon the mind of the party acting, other and prior provocations in connection therewith may also be considered. All of these things were in evidence, and the jury were told to consider all facts and cireupi-stances in evidence.

Appellant having been convicted only of aggravated assault, we have been unable to discover where any injury could possibly have resulted to him, even if it be conceded that the charge in question was not as full as appellant contends it should have been.

Having found no reversible error, the judgment of the trial court will be affirmed. 
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