
    DAVIS v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 7, 1912.)
    1. Homicide (§ 169) — Criminal Law (§ 696*) —Evidence—Remoteness—Failure to Object-Motion to Strike.
    Evidence that, two years before the difficulty between defendant and his wife, in which she was killed, he slapped her on two or three occasions, not being followed up by evidence of later difficulties of the same nature between them, was too remote; and should, on motion, have been excluded, though not objected to when introduced.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 341-350;. Dec. Dig. § 169; Criminal Law, Cent. Dig. §§ 1639-1644; Dec. Dig. § 696.]
    2. Homicide (§ 171) — Evidence —Circumstances Attending Act — Limitation by Court.
    Evidence that in the trouble between defendant and his wife, in which, accidentally or intentionally, she was killed with a knife, defendant kicked her immediately after she fell, or was seen on the ground, was part of the transaction itself, and not extraneous, so that it was not necessary that the court should limit the evidence thereof.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 351-358; Dec. Dig. § 171.]
    3. Criminal Law (§ 656) — Trial—Remark oe Court.
    The case being one of circumstantial evidence, the remark of the court, during the trial and while the question whether the law of circumstantial evidence should be charged was being discussed, that he did not know whether or not he would so charge was erroneous, as tending to make the jury believe he thought the facts sufficiently cogent to preclude the idea of charging on circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1524r-1533; Dec. Dig. § 656.]
    4. Homicide (§ 307) — Negligent Homicide —Evidence.
    Evidence that deceased had a knife in her hand, and that in the scuffle between her and defendant over a purse, which she had taken from him, the knife accidentally fatally cut her, does not raise an issue of negligent homicide, but merely of accidental killing.
    [Ed. Note. — For other cases, see Homicide, Dee. Dig. § 307.]
    5. Homicide (§ 142) — Issues—Corpus De-licti.
    There being no question of fact but that deceased came to her death by the infliction of a wound, caused by a knife, the question of corpus delicti is not in the case.
    [Ed. Note. — For other cases, see Homicide, Dec. Dig. § 142.]
    6. Criminal Law (§ 829) — Instructions.
    Refusal of special charges is not ground for reversal, where the substance thereof is covered, though not as clearly and forcibly, in an abstract way, by the charge given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    Charley Davis was convicted of murder, and appeals.
    Reversed and remanded.
    Clyde F. Winn, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted for the murder of his wife; his punishment being assessed at 18 years confinement in the penitentiary.

The theory of the state was that appellant, under implied malice, killed his wife. Appellant’s theory was that the wife killed herself, and there was evidence showing that it accidentally occurred in a tussle between the husband and wife. On the day of the homicide, a lot of negroes, including appellant and deceased, were on a serenading expedition. Upon reaching a certain residence, the state’s evidence is to the effect that appellant became boisterous, and his wife was requested to carry him away, which she did; that after leaving the crowd a short distance the homicide occurred. None of the witnesses testify about the matter with any degree of definiteness. In fact, they did not so see it as to be able to testify with any degree of accuracy as to how the homicide occurred.

1. The state introduced the witness Livingston, who testified that a little over two years prior to this difficulty and the death of his wife he saw defendant “fight her” on two or three occasions by slapping her. The evidence shows that between the date of those troubles and the date of the death of his wife there was no trouble between them. The contention is that this evidence was too remote, and should have been excluded. Appellant did not object to it at the time of its introduction, understanding and believing the state would follow this up with other matters showing other difficulties between them; but this was not done, and he then requested that the testimony be withdrawn from the jury. This was not done. We are of opinion that this motion of appellant should have been sustained. As presented in the record, it was too remote. McAnear v. State, 43 Tex. Cr. R. 518, 67 S. W. 117; Medina v. State, 43 Tex. Cr. R. 52, 63 S. W. 331; Wakefield v. State, 50 Tex. Cr. R. 124, 94 S. W. 1046; Wilburn v. State, 77 S. W. 4; 4 Ency. of Evidence, p. 1002; 6 Ency. of Evidence, 592; Billings v. State, 52 Ark. 303, 12 S. W. 574; Herman v. State, 75 Miss. 340, 22 South. 873; Pound v. State, 43 Ga. 98; Ross v. Commonwealth, 55 S. W. 4, 21 Ky. Law Rep. 1344. These occurrences were two years, or such a matter, before the homicide, and were too remote, in the absence of showing intermediate trouble between them, so as to bring it closer to the homicide. The trouble between an accused and the deceased must be of such a continuous nature as to show that the act proved may have evidenced motive or malice, or furnished a reason for the killing; otherwise it would not be admissible. Hall v. State, 31 Tex. Cr. R. 565, 21 S. W. 368. But where the act is remote, and not followed by other acts of the same character or general nature, it will not be admissible. The authorities above support this proposition. We think this was error.

2. The court failed to limit the evidence adduced to the effect that appellant kicked his wife when she was on the ground at the point where she died. This kick occurred immediately after the wife was seen to fall, or was seen on the ground, by the witnesses, a short distance away. We are of opinion the court did not err in failing to limit this testimony. It was part of the transaction itself, was not an independent crime, and therefore not necessary to be limited as extraneous matter, or to show malice, motive, or intent, or to develop the res gestse. It was an immediate part of the difficulty itself, and not éxtraneous.

3. During the trial and while the issues were being discussed, the question as to whether the law of circumstantial evidence should be given in instructions to the Jury came up for discussion. The court remarked that he did not know whether he would so charge or not; that he had not made up his mind on that question. Exception was reserved to this remark, on the ground, among other things, because it conveyed to the jury the court’s opinion that the case was not one of circumstantial evidence; at least, that it was, in the mind of the court, fully a debatable question, so much so that he had not determined whether he would charge that phase of tie law. This may, and doubtless did, influence the jury to believe that the court thought the facts were sufficiently cogent to preclude the idea of charging on the law of circumstantial evidence. The testimony shows beyond any cavil that it was a case of circumstantial evidence. This remark should not have been indulged by the court. Beason v. State, 43 Tex. Cr. R. 442, 67 S. W. 96, 69 L. R. A. 193. The Beason Case is analogous to this, and very much like it in this respect.

4. It is contended the court should have charged the law of negligent homicide. We are of opinion appellant’s contention is not sound. The court gave a charge with reference to accidental homicide, which was one of the theories raised by the evidence, and which was for the benefit of the defendant. The evidence upon this phase of the case was to the effect that the deceased had a knife in her hand, and that she and her husband (appellant) were scuffling over a purge which she had taken from him, and that in the scuffle this knife accidentally cut the deceased, so that she died. This does not raise the issue of negligent homicide. It would, however, suggest, as the court charged, the theory of accidental killing.

5. Another proposition is urged for reversal, to wit, that the corpus delicti was not proved. Appellant cites us to the case of Lovelady v. State, 14 Tex. App. 545, and the same case reported in 17 Tex. App. 286, and other cases. These cases are not applicable to this case. In the Lovelady Case, the evidence failed to show that the deceased was killed — that is, the testimony failed to show how she came to 'her death — and the state was unable to prove the fact as to whether it was by violence or not. Here there is no question of the fact that deceased came to her death by the infliction of a wound, and, with accuracy, that that wound was caused by a knife. The question at issue here is whether the defendant did it, or that it was accidentally done in the scuffle between deceased and defendant, or that it was self-inflicted by deceased. Therefore the question as to corpus delicti was not in the case. The serious question in the case was to connect defendant criminally with the death of deceased.

6. Another question suggested is that the court erred in not giving the following instruction asked by appellant: “You are further instructed that you cannot convict the defendant in this case, unless you believe from the evidence: (1) That the defendant inflicted the mortal wound upon Lula Davis. (2) That he did it intentionally; that is, with malice aforethought, either express or implied. If you have a reasonable doubt as to whether defendant inflicted the mortal wound upon Lula Davis, you will acquit the defendant, and say by your verdict, ‘Not guilty.’ If you believe from the evidence that defendant did inflict the mortal wound upon Lula Davis, but you should have a reasonable doubt as to whether he did it intentionally, you will acquit him, and say by your verdict, ‘Not guilty.’ ” This charge is a very clear and succinct statement of the issues of the case as shown by the testimony; in fact, we are of opinion that it covers in a rather laconic manner the issues that should have been submitted to the jury. Upon another trial, we would suggest to the trial court that he give the charge asked by appellant, omitting, of course, that phase of it with reference to express malice, inasmuch as appellant has been acquitted of murder in the first degree. We would not feel, however, justified in reversing for the court’s failure to give the above charges in view of the following charge given by the court.

7. The court submitted murder in the second degree, and with reference to the other issues in the ease embodied them in the following language: “If you believe that Lula Davis cut or stabbed herself, either purposely or accidentally, or if you have a reasonable doubt thereof, you must acquit the defendant; or, if you believe the defendant and his wife were engaged in a tussle over some money, and that in the tussle the wound which caused deceased’s death was accidentally inflicted, or if you have a reasonable doubt thereof, you must acquit the defendant.” While this charge, in a general way, submits the defensive theories in an abstract way, yet it did not as clearly and forcibly put the questions before the jury for their decision directly pertinent to the case as did the special charge requested by appellant. If the- defendant inflicted the mortal wound upon Lula Davis, and did it intentionally, he would be guilty at least of murder in the second degree, unless the other circumstances showed mitigation or extenuation. If he did not do it intentionally, or did not in fact inflict the wound, then he would be entitled to an acquittal. If there was a reasonable doubt as to whether he inflicted the wound upon deceased, he should have been acquitted, or if the woman inflicted it upon herself he should be acquitted. We deem it unnecessary to go into a statement of the facts, further than as has been stated. The general statement set out, we think, sufficiently conveys the idea as to the issues of the case, and a lengthy statement in detail of the evidence would serve no useful purpose.

The judgment is reversed, and the cause is remanded.  