
    HICKS v. STATE.
    (No. 7966.)
    (Court of Criminal Appeals of Texas.
    Feb. 20, 1924.
    Rehearing Denied April 30, 1924.)
    1.Criminal law (&wkey;650 — Permitting witness to place counsel on table, and arrange body and limbs in manner deceased’s body found, not error.
    Where defense was self-defense, and where state relied almost entirely upon position in which deceased’s body was found, and surrounding circumstances, to overcome such defense, it was not error to permit witness to place state’s counsel upon table and arrange his body and limbs in position of deceased’s body at time found.
    2. Witnesses <®=»382 — Permitting impeachment of defendant’s wife as to matter about which he had not definitely questioned her not error.
    Where defendant’s wife had testified as to difficulty between defendant and deceased a few nights before killing, and of threats by deceased, held not error to permit state to impeach her by proving that she had stated, in conversation with deputy sheriff, she knew nothing of any difficulty between the men, notwithstanding defendant had not elicited from her any testimony as to such conversation.
    3. Witnesses &wkey;^380( I) — Accused’s wife may he impeached by proof of contradictory statements as to material matters developed on her direct examination.
    Defendant’s wife, testifying for him, may be impeached by proof of contradictory statements, pertinent to material matters inquired about on her examination in chief, though the exact matter on which she is sought to be impeached was not gone into by defendant on his examination.
    4. Criminal law <&wkey;720(9) — Argument of counsel that defendant had admitted killing held not improper.
    Where defendant, when called upon to plead, answered, “I killed the man but I am not guilty,” opening argument of counsel that defendant had said, “Tes, I killed the man,” held not error in view of testimony of defendant, whose killing of deceased was not questioned.
    5. Criminal law &wkey;»l037(2), 1055 — Argument to which no exception taken, or concerning which no instruction requested, not reviewable.
    Bill of exception complaining of argument of counsel cannot be considered where court’s certificate shows that no exception was taken to it, or instructions to disregard it requested, and that court was unaware of any complaints as to it until presented in motion for new trial.
    6. Criminal law <&wkey;l 170'/2(2)— Attempt by state to impeach its own witness held not cause for reversal.
    In criminal prosecution permitting state to recall its own witness and ask him whether he had not made statements contradictory of his testimony, on direct examination, held not cause for reversal where he denied making such statements the record not showing that the state pursued matter any further.
    On Motion for Rehearing.
    7. Criminal law <&wkey;>l 144(15) — Failure to bring up evidence heard by trial court, as to alleged communication with jury, held to preclude review.
    Where record as tp alleged communication with jury, while in retirement, stated that judge on motion for new trial heard “the evidence adduced,” but contained no statement of that evidence, the matter was not reviewable, the presumption in such ease of correctness of lower court’s determination in denying motion prevailing.
    
      <@=»3Tor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    
      8. Criminal law &wkey;>l 144(13) — One wishing to complain of court’s determination of issue on evidence must preserve same.
    When court hears evidence, and decides an issue on it, one wishing to complain of the decision must preserve such evidence and present it to the appellate court; else presumption in favor of the lower court will prevail.
    «SrmFor other cases see same tojsic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Fannin County; Ben H. Denton, Judge.
    Will Hicks was convicted of murder, and he appeals.
    Affirmed.
    S. F. Leslie, Fred S. Rogers, and Thos P. Steger, all of Bonham, for appellant.
    •Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the ¡State.
   HAWKINS, J.

Appellant Is under conviction for the murder of Sy Parrigan, with punishment assessed by the jury at 20 years’ confinement in the penitentiary.

The killing occurred on the morning of March 30, 1922, in a barn belonging to appellant, and not very far from his residence. No one was present save appellant and deceased. Two- shots were fired by appellant, both striking deceased. The state had witnesses describe, with much detail, the exact position in which the body of deceased was lying, and appear to have relied largely upon the peculiar cramped position in which it was found, together with other circumstances in connection therewith, to combat the defensive and direct testimony of appellant and his wife. The wounds upon deceased were described. Both entered from the front; one passed almost through the body, ranging downward, lodging some 10 or 11 inches lower than the entrance wound. His feet seemed to be cramped back under his body in some way. Under his right hand was a knife, and also quite a quantity of cut shavings from a corn cob; some of these shavings were on his legs and some under them; a cob was lying near his head which showed to have been whittled on. The state rested its case in chief upon the proof of conditions found at the scone of the killing —the character of the wounds and the position of the body. As we understand the record, it was the contention of the state that these conditions were such that they met and refuted the theory of self-defense supported by the positive testimony of appellant. Deceased and his wife had separated about 15 days before the homicide. Appellant and his wife testified, substantially, that deceased had left some of his property in charge of appellant, and said that he (deceased) was going to Oklahoma, and asked appellant to look after these things while he was away; that deceased advised appellant to let his (deceased’s) wife have anything she wanted, even if it was all of the property; that deceased returned on the 28th of March, at which time he seemed to have changed his mind with reference to the property, and said his wife should not have any of it; that he intended to die by it, and appeared to be angry because appellant was insisting on carrying out deceased’s original instructions with reference to the property. They both testified that deceased made threats against appellant, but remained at his house during the entire night of March 28th, leaving with his 11 or 12 year .old boy the next morning; that he returned again on the morning of March 30th, and made inquiry for appellant from children who were playing in the yard; that appellant soon thereafter proceeded to the barn, and was discovered by deceased who immediately followed, cursing appellant; that he was cursing when he entered the barn behind appellant, and that the shooting immediately followed. Thus far the testimony of appellant and his wife is substantially the same. Appellant says, when deceased opened the door to the barn, appellant told him not to come in, to which deceased replied that he was going to “cut his G- d- throat”; that appellant at the time,' was attending to a call of nature ; that he jumped up, and, when' deceased stepped inside the door, he saw a knife in his hand, and that appellant fired two shots. Appellant seems to have been very deliberate in his testimony, explaining in detail how he aimed; that he intended to kill if it was necessary to keep deceased off of him, and described accurately where he hit deceased, and how he knew he hit him in these particular places because that was where he' had aimed to hit him. The state proved by Johnny Parrigan, 12 year old son of deceased, that his father and appellant had been in the barn some 30 minutes before the shots were fired; that he and appellant’s son had been down about the barn playing but that appellant told them to go back and not come down to the barn; that he and the other boys went back and sat down on a cultivator near a wagon; that they were down near the lot at the time appellant told them to go back.

Appellant complains because a state’s witness was permitted to place state’s counsel upon a table, and arrange his body and limbs in the position of deceased’s at the time the body was discovered. No one was present in the barn at the time the killing occurred except appellant and deceased. It was necessary for the state to rely upon proof of circumstances to refute appellant’s statement as to the manner in which the killing occurred. It appears to have been the opinion of counsel for the state that this depended largely upon the exact position of deceased’s body when discovered, immediately after the killing. We see no objection to the character of demonstrative evidence used by the state in this instance. Wharton’s Crim. Evidence, vol. 2 (10th Ed.) sections 518a and 518e. Almost this exact question, and certainly the same in principle, was decided against appellant’s contention in Stembridge v. State, 94 Tex. Cr. R. 207, 250 S. W. 180.

Bills of exception 3 and 4 will be considered together, as they relate to the same matter. After appellant’s wife (Mrs. Lula Hicks) had testified for appellant, and had been cross-examined, she was recalled by the state to lay a predicate for impeachment. She was asked if she did not state to deputy sheriff Leeman, shortly after the killing, that there had been no prior trouble between her husband and deceased, and that she knew nothing about any difference or difficulty between them until she heard the shots fired. She denied making such statement. Leeman testified that she did make it. Appellant objected to this procedure on the ground that the subject inquired about by the state was new matter about which appellant had not made inquiry. On direct examination, the wife testified for appellant about deceased having left his property in appellant’s custody at the time he and his wife had separated ; that when deceased came back a few days before the killing, he had a shotgun and a pocket knife, and also a bottle of medicine which he said would kill a 100 people; that during the night,'at the house, deceased continually talked about killing people; that he was dissatisfied because appellant had loaded the household goods on a wagon, and was getting ready to haul them away, in obedience to instructions given by deceased at the time he left, some 15 days before; that deceased said his wife should not have any of the property, and that he would die by it. She further testified that deceased “wanted to jump on Will (appellant) there in the house”; that she begged him not to have any trouble, as some of her children were sick, to which request deceased replied that he would “get Bill further down the road”; that he said this several times; that deceased left their house the next day but came back on the morning of the killing; that when appellant went to the barn, deceased “just fell in after h‘im, cursing”; that she saw deceased jerk the barn door open, and said, “I never heard the like of cursing in my life.”

In his Annotated Penal Code, § 153, p. 87, Mr. Branch cites many cases, and announces the correct rule that—

“The wife of the defendant may be impeached by proof of contradictory statements as to material matters inquired about on her examination in chief.”

The objection urged by appellant is that he did not examine his wife with reference to any conversation she may have had with Leeman, relative to the killing. If the impeaching evidence was pertinent to what she had testified in appellant’s behalf on direct examination, it would be proper for the state to impeach her thereon. It is not required that the exact matter should have been gone into by appellant on his examination of the wife. The testimony of the wife given before the jury tended to support appellant’s theory of the killing, and is not at all in consonance with what she told Lee-man soon thereafter. From her evidence she would have the jury believe that deceased was the aggressor in the difficulty, had threatened two nights before to do appellant violence, and was undertaking to carry that threat into execution at the time the killing occurred; that he followed her husband into the barn, cursing him at the time. She not only asserts that this previous trouble existed between her husband and deceased, but positively avers that she had knowledge thereof. There is no merit in appellant’s contention that the impeachment related' to a matter not inquired about by him. Bell v. State, 88 Tex. Cr. R. 64, 224 S. W. 1108.

Bill of exception No. 5 recites that, at the time appellant was called upon to plead to the indictment, he answered, “I killed the man, but I am not guilty.” Complaint is made that the district attorney, in his opening argument for the state, among other things, said that appellant said,' “Yes, I killed the man.” This was objected to on the ground that the district attorney was referring to appellant’s statement when arraigned, and not to his evidence before the jury. The court approved this bill by stating that no instruction relative to the argument was requested, and that, in his opinion, the statement made by the district attorney was authorized by the testimony of appellant. From an examination thereof we think the learned trial judge is correct. That appellant did the killing is not questioned.

In his bill of exception No. 6 appellant complains of certain other argument of the district attorney. We do not set out the argument complained of because the bill cannot be considered. The learned trial judge certifies that no objection was made to the argument, no exception taken thereto, and no request for instructions to disregard it was presented to the court. It appears from the record that the first information the trial judge had that any complaint was made to the argument was when it was presented in the motion for new trial. It was then too late to Complain of a matter which, if it occurred, bad passed beyond- the power of-the court to correct. We do not discuss the matter further than to refer to the following cases, all of which discountenance the consideration of objection to argument where presented in like .manner as here appears, Weige v. State, 81 Tex. Cr. R. 476, 196 S. W. 524; Spears v. State, 91 Tex. Cr. R. 51, 237 S. W. 270; Simmons v. State, 93 Tex. Cr. R. 421, 248 S. W. 392; Harris v. State, 93 Tex. Cr. R. 544, 249 S. W. 485.

Horace Hicks, son .of appellant, was placed upon the witness stand by the state. He testified that his father went, into the barn first, and had been in there three or four minutes before deceased went into the barn, and that the shooting occurred immediately after deceased entered. This witness was later recalled by the state and asked if he “did not, immediately after the shooting, tell Mr. Leeman that deceased and witness’ father went into the barn together, and that his father told witness and the other boys to go on away from there.” Objection was .interposed to- this - question on the ground that the st-ate had made Horace Hicks its witness, and had no right, under the circumstances, to lay a predicate for his impeachment. This objection being overruled, witness stated that he did not make such statement to witness Leeman. As it appears from the bill, the matter seems to have ended with this denial on the part of the witness. The bill is number seven. The learned trial judge, in approving it, made the following notation: “This bill is approved with the same explanation as given to bill of exception number eight.” We find no bill number eight in the record, and therefore must appraise the matter from bill number seven alone. In view of the negative answer of the witness, we are left to determine whether the question itself presents such' error as would call for a reversal. We do not think so.

The point raised by appellant’s bill number two is not briefed, but we have examined it and think it is without merit.

Finding no errors in the record which would call for a reversal, the judgment is affirmed.

On Motion For Rehearing.

LATTIMORE, J.

Appellant insists that his contention that there was a communication had with the jury while in retirement was overlooked by us, not discussed in the original opinion. We regret that the matter is not in such shape as that we could give it consideration because of lack ,of proper support in the record. The order - of the learned trial judge, overruling the motion for new trial, recites that he heard “the evidence adduced.” What was said evidence? Was it by affidavit, or was it oral testimony? Answer to those questions is not found in the record either by bill of exceptions or statement of facts filed during term time. Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116. The recitation in the order of the court below that the court heard evidence is deemed sufficient to show that the truth of the facts set up in the motion for .new trial is controverted. Cade v. State (Tex. Cr. App.) 258 S. W. 484. In this case the state controverted the allegations of the motion for new trial by a' general denial, and further in its controversy set out certain statements attributed to officers who went to the jury room, but which statements, and the affidavits containing them, are vastly different from the statements contained in the affidavit attached to appellant’s motion, both in fact and in legal effect. It being then stated that the court heard evidence upon the presentation of the motion for new trial, and there being nothing to show what said evidence was, what must this court do?

When the court hears evidence, and upon it decides an issue, he who wishes to complain on appeal of such decision must preserve said evidence, and present it to the appellate court, else- the assumption of correctness as to the actions of the lower courts will prevail. Affidavits attached to motions are but parts of the pleading. Lopez v. State, 84 Tex. Cr. R. 422, 208 S. W. 167, and Reyes v. State, 81 Tex. Cr. R. 588, 196 S. W. 532, cite numerous authorities on this point. We think appellant misapprehends the opinion in. Atkinson v. State, 93 Tex. Cr. R. 305, 247 S. W. 286, in which, because of the failure to have an attorney to represent him during the trial, we said there were no bills of exception, etc.,' during the trial. We find nothing in said opinion to justify the conclusion that the matters complained of, in connection with the motion for new trial, when appellant did have an attorney, were not properly preserved and here presented. Under the peculiar facts in that case, this might or might not have been true, and still our conclusions have been the same. Nor do we find anything in McCampbell v. State, 37 Tex. Cr. R. 607, 40 S. W. 496, out of harmony with what we have said. The evidence heard by the trial judge on the motion for new trial, in that case, seems to have been by affidavits, and mention is made of “affidavits introduced,” etc. This court has never held that the trial court is without power to hear evidence by affidavits in such case. The act of the trial court, held erroneous in the case last referred to, was in letting a juror separate from his fellows, unaccompanied by an officer. The proposition as to how that question was presented to the appellate court was not debated in the opinion. The decision in that case was prior to Black v. State, supra.

We have again reviewed the other contentions made by appellant in his motion, and have concluded that the matters referred to were -properly disposed of in our original opinion.

The motion for rehearing will be overruled.  