
    HENLEY v. STATE.
    (No. 4438.)
    (Court of Criminal Appeals of Texas.
    May 2, 1917.)
    1. Homicide <@=»189 — Evidence—Admissibility.
    In prosecution for murder under plea of self-defense, defendant’s evidence tliat deceased’s daughter was an immoral person and that at a certain “chicken garden” her conduct was improper was admissible, where defendant testified deceased’s daughter was initiating defendant’s daughter into similar conduct.
    [Ed. Note. — Eor other cases, see Homicide, Cent. Dig. § 398.]
    2. Homicide, <@=5187 — Evidence — Admissibility.
    In such case evidence that deceased’s daughter at his residence drank intoxicants and solicited men to purchase intoxicants for her should have been admitted.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 390, 399%.]
    3. Witnesses <@=»345(3) — Impeachment—Single Offenses.
    In such case it was error to permit testimony of probation officer that a witness had been convicted as an incorrigible child.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. § 1126.]
    4. Homicide <@=>189 — Evidence—Admissibility.
    In such case testimony of defendant’s daughter that deceased sent word by her to her father which she communicated that deceased would not permit defendant to take defendant’s daughter from deceased’s house should have been admitted.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 398.]
    5. Homicide <@=>1S9 — Evidence—Admissibility.
    In such case insulting, conduct of deceased toward accused’s daughter was admissible.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. § 398.]
    6.Homicide <@=>163(2) — Evidence—Admissibility.
    In such case defendant’s statements that deceased had said that he visited the “chicken garden,” drank with women there and that they sat in his lap and had a good time generally should also have been admitted.
    [Ed. Note. — Por other cases, see Homicide, Cent. Dig. §§ 312-317.]
    7. Witnesses <@=>384 — Impeachment^-Heak-say.
    It was error to permit a witness in impeachment of another material witness to testify that such witness had told him that he knew that defendant was going to kill deceased.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. § 1226.]
    8. Witnesses <@=>274(2) — Impeachment.
    Where defendant placed his' general reputation as a peaceable, law-abiding man in issue, it was error to ask witnesses if they did not know that defendant shot three times at ope of his own sons, in the absence of evidence that defendant did do so.
    [Ed. Note. — Por other cases, see Witnesses, Cent. Dig. § 966.]
    9. Witnesses <@=>274(2) — Impeachment:
    In prosecution for murder, defendant having placed his character as a peaceable, law-abiding-man in issue, it was error to permit the question of a witness whether he had heard that defendant drew a long knife and tried to cut the throat ' of a certain man, in the absence of evidence that defendant did do so.
    [Ed.- Note. — Por other cases, see Witnesses, Cent. Dig. § 966.]
    Appeal from Criminal District Court, Dallas County; W. L. 'Crawford, Jr., Judge.
    Tom Henley was convicted of murder, and he appeals.
    Reversed and remanded.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of murder, and his punishment assessed at 25 years in the penitentiary.

Only a brief general statement is necessary. The deceased, J. S. Donaldson, and appellant lived with their respective families near one another, close to Dallas. Deceased had and ran a store in part of his residence. He was a drinking man, and when drinking or drunk was more or less insulting to others and made threats of personal violence towards others. He had living with him a daughter, whom Mrs. Donaldson testified had several years before then married, but had separated from her husband. -Other witnesses in the same community, and appellant, it seems, did not know of her previous marriage, seeming to regard her as not having been married. What testimony was introduced along this line indicated that at and shortly prior to the killing this daughter was pregnant, and this appears to have been noticed by appellant and others. The testimony would also indicate, or at least such an inference could well be drawn therefrom, that her pregnancy was caused, not by her husband, from whom she had been some time separated, but by some other man in illegitimate intercourse. She was a young woman, perhaps about, or not much older than, 20 years.

Appellant also had a daughter living with him, named Mrs. Marie Pool, some 18 or 20 years old, who had some four years before the killing married, and lived some years with her husband, by whom she had a child. She and her husband had separated some six months before the killing, and she went to her father’s to live. Appellant, some week or two before the killing, on different occasions, had left homo to work for others, and remained away from one to two or three days on these occasions. When he returned home he found that his daughter, Mrs. Pool, was not at his home, and ascertained that she was at deceased’s, or had been. Appellant testified that he had been told that deceased was his worst enemy, and one of his sons testified deceased had made a threat against appellant to the effect that, when he was threatening to kick this son off of his premises or the road near thereto, and the son stated to him in substance that he would tell his father and see if he would kick his father off, deceased replied:

“All right, go down and get your daddy; I would like to get a good chance at him, anyhow.”

Appellant also contended that deceased kept intoxicating liquors at his said store and residence and sold it, and that deceased’s said daughter drank such liquor and solicited young men who came there to purchase it for her to drink. Appellant was very much opposed to his daughter, Marie, going alone to deceased’s or staying there with them at any time, and when he found upon his return home that she was there, or he thought she was, he would inquire there for her, and that the deceased and his family knew that he opposed his daughter’s staying with them. He also sought to show that a man by the name of “Wine Joe” ran a “chicken garden” right near deceased’s at which he claimed intoxicating liquors were sold and drunk, and that his “garden” was frequented by immoral women, and that said deceased’s daughter frequented it and drank liquor therein, and perhaps disported herself in such a way as to at least reflect upon her chastity. Appellant also testified that on an occasion a few days previous to the killing he had heard that his daughter, Marie, was at deceased’s, and met him and inquired about it, when deceased said he did not know “a G- d- thing about it” and cared less. Appellant’s claim was that deceased was harboring his daughter at his house for improper purposes, and he regarded deceased and his said daughter as improper associates for her, and he was anxious and trying to keep her away from them.

On the morning of the killing appellant had returned home, after an absence of a day or two or three, and found his daughter, Marie, absent from home, and concluded she must be at deceased’s. He thereupon looked for her there, and some distance from deceased’s saw that she was there. He then went to deceased, who was working in a peanut patch near his place, to inquire about his daughter, to ascertain why deceased was harboring her at his house, and that, when he inquired if his daughter was at his house, deceased got mad and replied to him in substance as he had on the previous occasion, and immediately assaulted him with a hoe in such a manner as that appellant claimed clearly justified killing deceased in his own self-defense, and that he thereupon in self-defense shot and killed him.

Appellant has several bills of exceptions showing that the state objected to and the court excluded various items' of testimony by different witnesses, by whom he sought to show the said threat against him to his son and the deceased’s threat to kill a man by the name of Lear and several other items of testimony. The court allowed and approved these bills without any qualification or explanation. As a matter of fact, the statement of facts shows that much of this testimony was actually admitted and in evidence before the jury. We do not care to take any of these matters up and discuss them. The record shows them. Why such bills were allowed when the record shows the testimony was'actually admitted, and properly so, we cannot understand.

There were other items of testimony, however, which were excluded, and proper bills allowed. Without taking these up separately, we will pass upon the questions raised thereby.

In our opinion, all of the testimony offered by appellant which was excluded as to the said “Wine Joe’s” place and the course of conduct carried on therein and all of deceased’s daughter’s conduct thereat should have been admitted. Also all that testimony which was excluded wherein appellant sought to show the conduct of deceased’s daughter at his residence as to her drinking intoxicants and her soliciting the purchase of intoxicants for herself by men who came there should have been admitted; particularly the testimony of Banzett, which was excluded, shown by appellant’s bill 19. The court erred also in permitting the testimony of probation officer Chick to the effect that said Banzett had been convicted as an incorrigible child, as shown by appellant’s bill 26. Banzett could not be impeached by showing conviction in any such matters. The proposed testimony of appellant by his daughter, Marie, to the effect that deceased sent word by her to him, which she communicated, that he (deceased) would n&t permit him to take her away from his house, as shown by bill 17, should have been admitted. The insulting conduct of deceased towards appellant’s daughter, as shown by bill 16, should have been admitted. The proffered testimony by appellant, shown by bill No. 20, that deceased had told him that he (deceased) visited said “Wine Joe’s” chicken garden, drank with various women there, and of the women sitting in his lap at said place, and he having a good time with them generally, should also have been admitted. All this excluded testimony was admissible so that the jury could understand the circumstances surrounding appellant leading up to the killing and which operated on his mind when he killed deceased, and thereby be better able to properly assess his punishment, if they found him guilty; also it might have raised a lower grade of homicide than murder.

There was no error in refusing those special charges of appellant, which the court refused. ’

As presented by appellant’s bill 15, we think the court’s action in excluding the testimony of appellant's wife of what he said to her soon after he killed deceased to the effect that he killed deceased in self-defense was not res gestee, and was properly excluded by the court.

Otis Henley, one of appellant’s sons, was a very material witness, and gave material testimony for him¡ The state was permitted to have Mr. Woods testify in impeachment of Otis Henley to the effect that Otis stated to him on a certain occasion soon after the hilling that he (Otis) knew that his father, appellant, was going to kill Mr. Donaldson. The admission of such impeaching testimony as this has been uniformly held error by this court since the opinion in Drake v. State, 29 Tex. App. 265, 15 S. W. 725.

A large number of witnesses testified that the general reputation of appellant as a peaceable, law-abiding man was good. In cross-examination of some of these the state asked, in substance, if the witness did not know about appellant shooting three times at one of his own sons and of some other claimed unlawful acts ' by appellant. It is permissible to ask witnesses on cross-examination under such circumstances about such specific acts of an accused, but it must be shown that he had committed the act about which the witness is asked, not a mere asking if the witness did not know that the accused had committed such act, without as a matter of fact showing that he had committed the act. The court, if such questions arise on another trial, will be governed in the admission of such testimony by requiring the proper predicate to be laid before such questions are asked and answered. Particularly does appellant’s bill 31 show error along this line. That bill shows, without any kind of testimony having been introduced that appellant had even committed such an act, that the state was permitted to ask a witness on cross-examination:

“Did you ever hear of this appellant drawing a long, keen-bladed knife and attempting to cut the throat of a man by the name of Rawlins in the Lancaster community?”

This question and answer to it should not be permitted on another trial without first laying the proper predicate to show that appellant had committed such an act.

The judgment is reversed, and the cause remanded. 
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