
    MARSHALL v. STATE.
    (No. 10048.)
    (Court of Criminal Appeals of Texas.
    April 14, 1926.
    Rehearing Denied June 25, 1926.)
    1. Criminal law <&wkey;78l (6) — Where-state in rebuttal of accused's testimony that deceased was assaulting him with knife introduced accused’s confession, refusal of accused’s request to. charge that confession was binding on state unless shown to be untrue held not error.
    Where accused testified that deceased, at time of homicide, was assaulting him with knife, and in rebuttal state introduced accused’s confession made shortly after homicide that deceased was making demonstration as if to draw a gun, held that it was not error to refuse to charge that state would be bound by confession unless it was shown to be untrue.
    2. Criminal lav/ &wkey;724(2).
    Argument of state’s attorney that accused put certain witnesses on stand to distract jury’s attention and to get jury to “turn loose this cold-blooded murderer” held not unwarranted.
    3. Homicide <&wkey;!69(7) — Testimony in murder case, that deceased stated that if accused would settle half as reasonable as witness for damages caused by deceased’s cattle settlement could be made, held not error.
    In prosecution for murder of person whose cattle damaged accused’s cotton patch, testimony that deceased had stated that if accused would settle half as reasonable as witness had settled for similar damages settlement could he made, accused being present and taking part in conversation, held not error.
    4. Homicide <&wkey;169(l).
    In prosecution for murder of person whose cattle damaged accused’s cotton patch, exclusion of testimony of poundman as to other complaints relating to deceased’s cattle held no't error.
    5. Homicide t&wkey;347.
    Sentence to penitentiary for 25 years for murder will be amended to not less than 5 nor more than 25 years.
    On Motion for Rehearing.
    6. Criminal law <8=^1163(3).
    In absence of showing of prejudice in bill of exceptions, asking of leading questions will not be held reversible error.
    7. Criminal law <&wkey;l 119(2).
    Bill of exceptions reciting that leading questions were asked of state’s witness, who was “not an adverse, swift or unwilling witness,” held insufficient to show abuse of discretion in permitting questions.
    8. Criminal law &wkey;>ll4l(2).
    Burden is on accused to show affirmatively in bill of exceptions that permitting state’s attorney to ask leading questions of state’s witness was not justified.
    9. Criminal law <&wkey;656(2) — -Trial court’s statement, in ruling on accused’? objection that state sought to impeach its a-wn witness, that he was accused’s witness, held not comment on evidence (Code Crim. Proc. 1925, art. 707).
    Statement of trial court, in ruling on accused’s objection that state was seeking to impeach its own witness, that “he is not his witness, he is your witness,” 'held not comment on evidence nor calculated to convey court’s opinion of ease to jury in violation of Code Crim. Proc. 1925, art. 707, but mere ruling on objection made.
    10. Criminal law &wkey;>720i/2 — Argument of state’s attorney in murder case, referring to accused as “a cold-blooded murderer,” held not improper.
    Argument of state’s attorney in murder ease, referring to accused as “a cold-blooded murderer,” held not improper when not shown to be unjustified by evidence in record, and not being mere personal opinion of counsel or personal abuse.
    11. Criminal law &wkey;>l036(l).
    Objection that admission of evidence was prejudicial held too indefinite to make matters objected to reviewable on appeal.
    
      12. Criminal law 1137(3) — Court’s refusal to give accused’s requested instruction on right to impound cattle and to defend possession thereof held not error, where accused denied homicide resulted from deceased’s attempt to retake cattle.
    Where accused denied that homicide was caused by deceased’s attempt to retake his cattle, impounded by accused, and asserted that be shot deceased because deceased was assaulting him with knife, believing that his life was in danger, held that refusal of accused’s request to charge respecting right to defend possession of cattle legally impounded was not error.
    Commissioners’ Decision.
    Appeal from District Court, Wichita County ; H. R. Wilson, Judge.
    James' L. Marshall was convicted of murder, and he appeals.
    Affirmed as amended and reformed.
    Davenport, Cummings & Crain, of Wichita Dalis, for appellant.
    Ben P. Allred, Dist. Atty., Martin, Oneal & Allred and James Y. Allred, all of Wichita Falls, and Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Ryles, Asst. State’s Atty., of Groesbeck, for the State.
   BAKER, J.

The appellant was convicted in the district court of Wichita county for the offense of murder, and his punishment assessed at 25 years in the penitentiary.

The record discloses that the appellant possessed and was cultivating a few acres in cotton just outside the city limits of Wichita Falls; that the deceased, J. E. Swayzee, was the owner of about 50 head of dairy cattle, and was operating a dairy about a mile and a half from said cotton patch,that the cattle belonging to the deceased had been depredating upon said cotton, and on the night preceding the killing, about 5 o’clock in the morning, the appellant had corralled quite a number of said cattle, some of which he had tied to trees and posts in the lot', and was there guarding same with a Winchester when deceased arrived and was killed inside of said corral or lot. It was the contention of the state that the appellant had prepared himself for the homicide by borrowing this Winchester from a neighbor, and was guarding said cattle with the intention of killing the deceased in the event he failed to pay the damagesi which appellant claimed the cattle had done to his cotton prior thereto, and that the deceased, having missed his cattle, had gone to said corral early in the morning for the purpose of getting them, and upon entering said premises he was billed by appellant without cause or provocation and while he was unarmed. The appellant’s contention was that the deceased entered the lot and began to untie the cattle, against his protest, and that when he requested deceased to desist, the latter pursued • him with a knife, and that, believing his life to be in danger, he shot and killed the deceased. The court charged on murder, manslaughter, self-defense, and defense of property.

The record contains 15 bills of exception. Bills of exception 1, 2, 31, 8, 9, 10, and 11 complain of the refusal of the court to give to the jury appellant’s special charges involving his right to impound said cattle and retain possession thereof against any forcible attempt made by the deceased to take possession of same, and his (appellant’s) right to defend such possession to the extent of killing the. deceased, in the event it became necessary. These bills, as presented, show no error. We think the court, in his general charge, sufficiently covered the law applicable to said matters complained of, and in a manner favorable to appellant, especially in view of the fact that appellant, while a witness in his own behalf, positively testified that he did not kill the deceased because the latter was attempting to take charge of the cattle against his consent, and would not have killed him on that account at all, but based his defense solely upon the theory, and so. testified, that his only reason for killing deceased was that deceased was advancing upon him at the time with a knife in a threatening manner, and that he killed deceased in order to protect himself against death or serious bodily injury at the hands of said deceased.

Bill No. 4 complains of the refusal of the court to give in charge to the jury appellant’s special charge to the effect that the state, having introduced in evidence his confession which was taken shortly after the homicide, would be bound thereby unless said statements] were shown to be untrue. The court qualifies said bill as follows:

“The state’s case in chief was made independent of the confession; such confession was used by the state in rebuttal after the defendant had testified.”

This bill, as presented, shows no error. It appears that upon the trial the appellant contended, and so testified, that the deceased, at the time of the homicide, was making an assault upon him with a knife, and that the state thereafter introduced in rebuttal of said testimony the aforesaid confession, wherein the appellant stated that the deceased was making a demonstration as if to draw a gun when he shot him. It appears that this evidence was only used in rebuttal of the defendant’s own testimony. This court, under similar circumstances, has held that it is not error to refuse to charge on confessions. See Branch’s Ann. P. 0. § 73, for collation of authorities. See, also, Casey v. State, 54 Tex. Cr. R. 587, 113 S. W. 534; Cook v. State, 71 Tex. Cr. R. 532, 160 S. W. 465; Pickens v. State, 86 Tex. Cr. R. 657, 218 S. W. 755; Simpson v. State, 97 Tex. Cr. R. 57, 263 S. W. 273.

Bills 5 and 6 complain of tlie action of tlie court in permitting the state to lead the witness Donohue and interrogate him concerning a former statement made by him to the effect that, upon examining the premises where the homicide occurred, he had seen 40 tracks leading from the body of the deceased in the direction where the appellant claimed to be standing at the time of the shooting. These bills, as presented and qualified, show no error.

Bill No. 7 complains of the argument of the district attorney to the jury, wherein he stated, in effect, that appellant had put certain witnesses on the stand for the purpose of detracting the jury’s attention, from the main issue, and in an attempt to get the jury “to turn loose this cold-blooded murderer.” We are not prepared to say that this argument, considered in the light of the record, is of such a nature as would authorize a reversal of the case, or that the testimony of the state’s witnesses, if believed, was not a sufficient basis to warrant such a conclusion on the part of the district attorney. Price v. State, 87 Tex. Cr. R. 163, 220 S. W. 91; Boxley v. State, 100 Tex. Cr. R. 334, 273 S. W. 592.

Bill No. 12 complains of the action of the court in permitting the state to show by the witness Melton that in a conversation with deceased, wherein the witness and deceased were settling the damages that deceased’s cattle had done to witness’ cane, the deceased stated that said claim was reasonable enough, and in that connection stated, “If Mr. Marshall would settle half as reasonable as I, we would make a settlement all right.” Appellant contends that this testimony was prejudicial to his rights, and was a transaction between the witness and deceased not connected with this trial. This bill, as presented, shows no error. The record discloses that the appellant was present and took part in said conversation, as shown by the qualification on said bill.

Complaint is made in bill No. 14 to the court’s refusal to permit appellant to show by the witness Tucker, the “poundman,” as to how long he had been receiving complaints against the Swayzee cattle, which testimony was excluded upon the ground urged by the state that the same was immaterial and irrelevant. Appellant contends that it was admissible for rebuttal purposes. This bill, as presented, and considered in the light of the court’s qualification thereto, shows no error.

Bill No. 15 complains of the action of the court in stating, wfiile the witness Donohue was on the stand, that he was the appellant’s witness. It is contended that this remark on the part of the court was in effect a comment on the weight of the witness’ testimony in 'the presence of the jury. We are unable to agree with this contention. Hill v. State, 97 Tex. Cr. R. 605, 262 S. W. 750.

The sentence in this case orders appellant to. be confined in the penitentiary for 25 years. The same is here amended, and he is ordered to be confined therein- not less than 5 nor more than 25 years.

After a careful examination of the entire record, we are of the opinion that the judgment of the trial court should be affirmed, and, as amended and reformed, it is accordingly so ordered.

PER CURIAM.

The foregoing opinion by the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

BATTIMORE, J.

Appellant strongly urges that we erred in not upholding .his contention appearing in bill of exceptions No. 6. In disposing of the preceding bill we inadvertently coupled bill of exceptions No. 6 with No. 5 in the statement in our opinion that, “as qualified, bills of exception 5 and 6 show no error.” Bill of exceptions No. 6 does not appear to have been qualified. Said bill sets out a page and a half of questions and answers propounded to a witness by the. state’s attorney and certified as being presented in the form above referred to because deemed necessary to a fair presentation of the proceedings. The objection made by appellant appears in the bill as follows:

“To each of which questions the defendant objected through his counsel because the witness was a state witness, and that the questions were leading.”

Mr. Branch cites many cases on page 90 of his Annotated Penal Code supporting the proposition that a bill of exceptions complaining of the asking of leading questions improperly will not be held reversible error unless there be a showing of prejudice thereby. Nothing in the instant bill shows the antecedents or the connecting facts surrounding the questions asked. What was said by the court in Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 215, is so apt and applicable to the situation under discussion that we quote same as follows:

“There being so many exceptions to the rule which forbids asking leading questions, before we would feel authorized to reverse because the court below permitted leading questions, we would have to be satisfied from the bill that the leading question did not fall within any of the exceptions that authorized leading questions. Questions that assume unproved facts are leading. However, it is not a prejudicial error to permit leading questions where they relate to acts not controverted, or where the point sought to be established is already proven and in these questions the fact established may be recapitulated. See 8 Encyclopedia of Evidence, p. 153. Also leading questions may be put to hostile ■witnesses unwilling to give evidence. They are also permissible to refresh the memory of witnesses when the purpose of justice requires such a course to be taken. Also a leading question is permissible to arrive at facts when modesty or delicacy prevents a full answer to a general interrogatory. Also such questions are proper where the witness is confused or agitated. They are also permissible when they are asked of an ignorant person where he is slow to understand or his vocabulary is limited. They are also permissible to be put to children. They are also permissible and are not objectionable where the witness has given an ambiguous answer, and the party may inquire by leading questions as to any fact or circumstance tending to enable him to explain more clearly or certainly. Such questions are sometimes allowed for the purpose of bringing out details surrounding a main fact already testified to. See section 1105, Code of Criminal Procedure, and authorities there cited. Besides, this precise question was before us in the case of Snodgrass v. State, 36 Tex. Cr. R. 207 [36 S. W. 477], and it was there held that the prosecutrix could be asked: ^ ‘Would you have yielded to the sexual embraces of defendant had it not been on account of his promise of marriage V In view of the fact that discretion is left to the trial courts, in some cases, to permit the asking of leading questions, we think thé proper rule of practice would be for the bill of exceptions, taken to the leading questions, to affirmatively show that the leading questions did not fall under one of the exceptions to the general rule. The bill in this case fails to state at what time of the proceedings this question was asked, under what circumstances it was asked, whether the witness’ memory was bad or not, whether her recollection as to past events was treacherous, whether she gave her testimony in a halting manner, whether she was an unwilling witness, or whether the fact of her being a girl of 20 years of age and of modest demeanor caused her to be embarrassed upon the witness stand or not. Before we would be authorized to reverse a case upon this ground the bill should affirmatively exclude any idea that under the peculiar circumstances of the particular case, the court was justified in permitting the state to ask leading questions.”

The only thing appearing in the instant bill in reference to the attitude of the witness, or the circumstances suggesting that it was wrong for the court to permit questions in form as same1 appear in the hill, is found in the statement that the witness was “not an adverse, swift, or unwilling witness.” Mention of these three exceptions to the general rule forbidding leading questions in nowise includes all those instances in which same may be permitted under some one or more of the many other reasons which may justify the court’s action. As said by us in Moore v. State, 37 Tex. Cr. R. 565, 40 S. W. 292, speaking on this same point:

“It does not appear that the discretion of the trial judge was abused, or that any injury resulted to the appellant.”

The burden being on the accused to show affirmatively in his bill that the learned trial judge was not justified in permitting ■ such questions, and it plainly appearing that appellant has not discharged that burden, the bill shows no error. What we have just said applies in part to appellant’s contention as set out in bill of exceptions No. 15. However, this bill also presents another question. ' Following an objection made by appellant’s counsel that the state was seeking to impeach its own witness, the court said: “He is not his witness; he is your witness.” Appellant urges that this is in violation of article 707, 1925 C. C. P. (old article 787, C. O. P.), and cites Gribble v. State, 85 Tex. Cr. R. 52, 210 S. W. 215, 3 A. L. R. 1096. The remark of the court there condemned was a direct comment on the lack of weight of certain testimony admitted, and was plainly violative of the statute which forbids the judge to “discuss or comment upon the weight of the same or its bearing in the ease, * * * nor shall he * * * make any remark calculated to convey to the jury his opinion of the case.” In the language of this court in Wilson v. State, 17 Tex. App. 535:

“We do not understand the remark as a comment upon or disparagement of any evidence which defendant had introduced. If it could fairly and legitimately be so considered, then we would not hesitate to say that it was not only irregular, but highly improper and illegal.”

In the instant matter the statement of the court amounted to no more than the announcement of his ruling on the objection made. Appellant said he objected to the state asking certain questions of its own witness. The court ruled that the witness was not the state’s witness but was appellant’s witness, and stated his ruling in the language complained of. This was no comment on or discussion of the evidence, nor was it a remark calculated to convey to the jury the court’s opinion of the case.

The state’s attorney in his argument referred to appellant as “a cold-blooded murderer.” -Appellant excepted to this and asked the court to instruct the jury not to consider it, which request was refused. The attorney did not state the above as his private opinion. The language used by the attorney im Thomas v. State, 33 Tex. Cr. R. 607, 28 S. W. 534, was that the defendant murdered Earley while asleep, and, after brutally killing him, he robbed him, etc. Also the attorney said: “The defendant has committed a brutal murder.” This court refused to reverse for this language. In the Boxley Case, cited in our original opinion, the killing was referred to as “A cold-blooded assassination,” which was held not reversible. It not appearing that the argument complained of is an expression of some facts dehors the record, or that it represents the personal opinion of counsel, or that it is mere personal abuse, the question usually becomes one largely referable to the facts before the court who hears the testimony and is in a position to know whether same justifies the statements made. Nothing in this bill oí exceptions in any wise informs us that the facts failed to justify the conclusion that appellant was a cold-blooded murderer. By his refusal to give the reguested instruction to disregard such argument, the learned trial judge indicates his belief that such a statement reflected a fair' inference from the facts.

George Melton swore on this trial that shortly, before this homicide he had up some cattle of deceased which had gotten into his field; that appellant and deceased came to his place, and appellant introduced deceased to witness, and that deceased asked witness what the damages were, and upon being told, deceased said, “If Mr. Marshall would settle half as reasonable we would make a settlement all right.” Melton also testified that Marshall was standing there when this conversation took place. The only objection to this testimony, as appears from the qualification of the learned trial judge to bill of exceptions No. 12, is that it ,was “prejudicial.” We have often held an exception of this kind too indefinite to bring the matters complained of before this court for review. Venn v. State, 85 Tex. Cr. R. 158, 210 S. W. 587; Mauney v. State, 85 Tex. Cr. R. 184, 210 S. W. 961.

Appellant renews his complaint at the refusal of a requested charge submitting the theory of a' killing in defense of property, asserting that he had the cattle of deceased legally in his possession and that when he killed deceased the latter was in the act of unlawfully taking or attempting to take from appellant’s possession said cattle. We ’have again reviewed the facts in the light of appellant’s motion, and are confirmed in what we said about this contention in the original opinion. Appellant expressly disclaimed that the killing was caused by any attempt to take the cattle on the part of deceased. He repeatedly affirmed that deceased, after cutting loose the cattle, which were tied with ropes, made a threat and started toward him, appellant, that they both went up the bank together, or nearly so, and that when they got to the top of the bank he shot deceased believing his own life was in danger. We need cite no authorities holding that it was not error to refuse to submit the law of an issue’ which is not raised by the testimony.

Believing the case was correctly disposed of upon original consideration, the motion for rehearing will be overruled. 
      (g^sFor other cases see same topic and KEY-NUMBER in all Key-NumDered Digests and Indexes
     
      «gr^oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     