
    (86 Tex. Cr. R. 515)
    HARDY v. STATE.
    (No. 5509.)
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1920.)
    1. Homicide <&wkey;174(4) — Evidence of threats BY ACCUSED AGAINST JURY SHOULD HAVE BEEN EXCLUDED.
    In a prosecution for murder, evidence that three months prior to the trial accused had stated to witness, “I killed two men, and twelve men will try me, and, if they convict me and don’t watch me, I will get some of them,” was inadmissible and should have been excluded; it constituting a threat against the jury.
    2. Criminal law <&wkey;696(5) — Failure to object TO PREDICATE UPON WHICH IMMATERIAL EVIDENCE IS BASED IMMATERIAL.
    In a murder trial, evidence that, three months before, accused stated that he had killed two men, and if the jury convicted him he would get some of them, should have been stricken as immaterial to any issue,' notwithstanding absence of proper objection to the predicate question upon which it was based.
    3. Names &wkey;>16(2) — Variance as to name OE PERSON MURDERED NOT FATAL WHERE NAMES ARE IDEM SONANS.
    The names “McPhersion” and “McPherson” being idem sonans, in a prosecution for murder, that the name of deceased as alleged in the indictment varied to that extent from the true name as shown by the proof, did not constitute a variance, requiring a peremptory instruction of not guilty, in view of Yernon’s Ann. Code Cr. Proc. 1916, art. 466.
    4. Homicide <&wkey;194r-EviDENCE as to statements BY ACCUSED PROPERLY EXCLUDED WHERE TIME NOT SHOWN,
    ín a prosecution for murder, exclusion of evidence that accused prior to the homicide had told witness that he believed presence of witness with accused kept deceased and another from killing him on one occasion, that such parties had threatened his life, and that he was afraid to have lights in his house at night, or to sit by an open window, was not error; the time of such statements not being shown.
    5. Homicide <&wkey;474(2) — •Evidence as to description AND LOCATION OP WOUNDS ON PERSONS MURDERED WAS ADMISSIBLE.
    In a prosecution for murder, it was not error to allow witnesses to describe wounds on the bodies of deceased anci another person also killed by accused, and to state that such wounds or some of them were on the backs of the bodies.
    Appeal from District Court, Montgomery County; D. F. Singleton, Judge.
    Johnson Hardy was convicted of murder, and he appeals.
    Reversed and remanded.
    W. N. Foster, of Conroe, W. R. Cousins, of Hemphill, and E. H. Carter, of Center, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

This is an appeal from the judgment of the district court of Montgomery county, by which appellant was adjudged guilty of the murder of one Monroe McPhersion, and given a life sentence in the penitentiary.

The undisputed testimony shows that appellant killed deceased and one Gentry in 1904, and was arrested and placed in jail, from which he escaped, and was a fugitive from justice for many years, being 'apprehended, tried, and convicted in 1919.

" On his trial, appellant took the stand as a witness in his own behalf, and testified in chief, as well as upon his cross-examination, that he killed both of said men, and gave his reasons for so doing. There was no sort of question raised as to the fact that he shot both said parties with a gun, and killed them.

While on the witness stand, after he had told his story of said killing, on cross-examination the state asked him if it was not a fact that, some three months prior to the date of said trial, he had stated to one Alton Utz as follows:

“I killed two men, and twelve men will try me; and if they convict me and don’t watch me, I will get some of them.”

Appellant denied making the statement. Thereafter, the state placed the said Utz on the stand, and he stated that, at the time mentioned, appellant did make the statement contained in the above quotation.

Appellant reserved a hill of exceptions to the admission of said testimony, which shows that the objection as first made to the testimony of said Utz was that no sufficient predicate had been laid therefor, which objection was overruled, and the witness was permitted to answer. Appellant at once moved to exclude said testimony, upon the ground that the same was not material to any issue in the case, and because the same could only prejudice the jury against appellánt, as said' statement could only be construed as a threat against the jury. In this connection, counsel for the appellant stated to the court that they had not understood the language used by the state’s attorney in laying his predicate, while appellant was on the stand, and hence did not realize that the language imputed to appellant in said predicate question was a threat against the jury, and that, if they had so understood, they would have made the further objection to the testimony of said Utz when it was offered, which was now made the ground of their motion to exclude said testimony, and then moved the court to exclude the testimony, as above stated. This motion was overruled, and appellant took his bill of exception, setting forth the matters just referred to.

The trial court approved said bill, with the explanation that appellant made no objection to the predicate question when same was asked of appellant while on the witness stand. We are of opinion that the action of the trial court, in refusing this motion and in permitting this evidence to remain with the jury, was error. The fact that no objection was made to the predicate question or answer does not estop appellant. It is well established that one may not be impeached by proof of statements as to matters not material; and if a party attempting to lay a predicate does so, by asking about matters not material, he does so-at his peril; and, if the witness answer without objection from the opposite party, such answer ends the inquiry, and the party seeking to lay the predicate is not allowed to prove the falsity of such answer. So it follows, in the instant case, that there was no need of objection to the predicate question. Was the matter contained therein material to any issue in the case? We think, in view of appellant’s testimony, and admission of the fact that he had killed both said men, that the question and answer sought could shed no light on the case; but if the question had only been, if he had not stated to Vtz that he had killed two men, and stopped there, we would have held the matter harmless. If the question be asked as to the materiality of the predicate in its entirety, truth and fairness compel us to say that it was not •material to any issue. Not only was the state’s proof clear and abundant that appellant killed both of said men, but this was 'uncontradicted by any evidence of the appellant, and, as stated, he himself had taken the stand and sworn positively that he did kill 'them. We are unable to see how proof of a statement by him ex cathedra would have any probative force to establish the fact that he did kill them, and are compelled 'to believe that such evidence was sought and introduced solely because of the other matters contained therein, besides the statement that appellant had killed the two men. It appears to us that the remainder of said statement contains matters which were most injurious to appellant Whether the alleged threat against the jury was offered as impeaching evidence, or as an original statement made by the accused, it should not have been admitted, or if it was given in the testimony by reason of the failure to make proper objection, under a misapprehension, then it should have been stricken out on a motion. It is very difficult for us to see how a jury could be that fair and impartial tribunal which is guaranteed by our Constitution, ' when it was revealed to them by testimony that the man whose life and liberty was dependent on their calm judgment had said of them that, if they decided that ease against him, they would better watch out, as some of them would be ,his next victims.

“Mankind is unco-weak, and little to be trusted; Should self the wavering balance shake, ’tis rarely right adjusted”

—were the truthful words of a great poet-philosopher; and when the jury, who were just ordinary humans, were told that their own safety, and lives even, were threatened by the man on trial, it might have been thus made much easier for them to send the threa tener to the penitentiary for life, and thus put him in a place where he could not do them any harm. We think injury probable from the admission of this testimony, and, in view of this verdict, sufficient to demand the reversal of this case.

In our opinion, the trial court correctly overruled the motion of appellant for a peremptory instruction of not guilty, upon the ground of variance in the name of deceased, as alleged in the indictment and as shown by the testimony. We are of opinion that “McPherson” and “McPhersion” are idem sonans. See section 23, Branch’s Ann: Penal Code; article 456, Vernon’s C. O. P., and authorities cited.

The contentions arising from the argument of counsel for the state will likely not occur on another trial.

By two bills of exception, a review is sought of the action of the trial court in refusing to allow the witness Johns to testify to certain statements made to him by the appellant prior to the homicide. The statements were substantially that appellant told witness that he believed the presence of the witness with appellant kept, deceased and Gentry from killing him on one occasion; and also that appellant told him that said parties had threatened his life, and he was af-raid to have lights in his house at night, or sit by an open window, etc. This evidence was offered as showing the condition of appellant’s mind, and was objected to as being self-serving. As presented here, no error appears. The relation in point of time of said evidence to the homicide is not shown, and, for aught we can tell, the alleged statement was made months prior thereto. On another trial, if it should appear that said conversation and statement occurred reasonably near the date of the homicide, we think same should be admitted. Cole v. State, 48 Tex. Cr. R. 443, 88 S. W. 341. Practically the same evidence was admitted when said witness detailed what occurred at the time he and appellant met and talked with one Palmer.

We do not think there was any error in allowing the witnesses Sterrett and Anderson to describe wounds on the bodies of deceased and Gentry, and to state that said wounds, or some of them, were on the backs of said bodies.

The charge of the trial court was exceptionally full and fair. The special charges 1 and 2 asked by appellant were properly refused. As we read this record, and the evidence of appellant, there is nothing therein to support the proposition that appellant, just prior to the homicide, accosted the deceased or Gentry, and demanded that they leave his land and desist from cutting and removing his timber, or that he armed himself for the purpose of seeking an interview with them, to protect his property. He said, in his testimony; That he was hunting for his horse, and kept hearing a bell, and on going up the bottom he heard loud talking and cursing arid went to it, and saw Gentry and deceased, and he went right up to them, and said: “Now, Gentry, you are taking my posts, are you?” And that- Gentry denied it with an oath, and further called him an opprobrious name, and grabbed a stick and started toward him; and he threw his' gun on Gentry, who turned away, and that he shot Gentry. That deceased then started toward the wagon on which there was an axe and a few posts, and he shot deceased ¿efore he got to the wagon.

The witness Jones, who saw appellant first after the shooting, said that appellant told him that he had shot Gentry and deceased and said that they cursed him, and that he could not take that. This evidence did not call for the issues contained in said special charge.

For the errors mentioned, the judgment is reversed, and the cause remanded. 
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