
    WILLIAMS v. STATE.
    (No. 4693.)
    (Court of Criminal Appeals of Texas.
    Feb. 13, 1918.)
    1. Criminal Law <§=982 — Suspended Sentence — Evidence—Admissibility.
    Where one convicted of murder made plea for suspended sentence under Vernon’s Ann. Code Or. Proc. 1916, arts. 865b, 865c, authorizing suspended sentences, and expressly authorizing proof of reputation of one asking such sentence, witnesses could testify to various misdemeanors of accused for which she was arrested.
    2. Criminal Law <§=982 — Suspended Sentence — Evidence—Admissibility.
    Under plea for suspended sentence, the accused’s character at the time of trial being under investigation, evidence of character is not limited to time preceding the offense, but may include evidence of character at the time of trial.
    3. Witnesses <§=328 — Impeachment—Position oe Parties.
    In prosecution for murder, where a witness testified to having seen accused with a pistol in her hand held behind her just before she crossed the street and shot deceased, others could testify that, from witness’ position, he could not have seen the pistol, and others could say that, witness having pointed out to them the positions which he and accused occupied, he could have seen what he testified to.
    4. Criminal Law <§=1092(6) — Appeal — Scope — Record—Time to Pile.
    A bill giving evidence heard when motion for new trial was overruled, filed after adjournment for term, could not be considered.
    5. Criminal Law <§=938(2) — New Trial — Newly Discovered Evidence — Diligence.
    ' Evidence is not newly discovered in law, when the facts sought to be shown thereby could have been shown on trial, and the persons were all accessible, and could have testified at the trial.
    Appeal from, District Court, McLennan County; Richard. I. Munroe, Judge.
    Georgia Williams was convicted of murder, and she appeals.
    Affirmed.
    J. W. Taylor and Forrester &. Stanford, all of Waco, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of murder, and her punishment assessed at ten years.

Without doubt, the evidence was amply sufficient to sustain the verdict. She claimed she killed deceased in her self-defense. Her testimony, supported by some of her witnesses, would have been sufficient, if believed, to have shown she killed deceased in self defense. On the other hand, the testimony by the state was sufficient to show she did not kill deceased in self-defense, but killed her because of her malice aforethought against her. The jury and trial judge believed the state’s case, and did not believe hers. She pleaded for a suspended sentence, and in her direct evidence, to establish her right, and get a suspended sentence, testified, “I have never been convicted of a penitentiary offense in my life.”

The state opposed her getting a suspended sentence. It was therefore not only its privilege, but its duty, to introduce whatever proper evidence within its reach to prevent her from getting a suspended sentence. The state thereupon introduced several witnesses who testified, over her objections, to various axrests of her for misdemeanors committed by her, and court records showing she had recently pleaded guilty to some of them, and to her general bad reputation, etc. She preserved bills of exception to the introduction of all this evidence. It is unnecessary to take them up separately. They all raise substantially the same question.

The very statute which authorizes a suspended sentence and a plea therefor (Acts 1913, p. 8; 2 Vernon’s Or. Stats, arts. 865b, 865c) expressly authorizes proof of the reputation of such defendant who undertakes to get a suspended sentence. Very soon after the enactment of this law, it was construed by this court. Since then many other cases have been decided, all uniformly to the same effect. One of the first cases was Williamson v. State, 74 Tex. Cr. R. 289, 167 S. W. 360. Therein it was held that when a defendant files a plea for suspended sentence, “this in itself puts in issue his reputation as a peaceable, law-abiding citizen, and any evidence which tends to show that he is not entitled to such reputation, is admissible in evidence.” And when he files “a plea asking a suspension of sentence, then evidence which tends to show that he is not a peaceable, law-abiding citizen may be adduced on cross-examination of his witnesses, and may be adduced even though such acts' are not felonies, or do not involve moral turpitude.” This construction of this law has ever since then been adhered to and reiterated in every case when the question has been raised. Some of them are here collated. Martoni v. State, 74 Tex. Cr. R. 90, 167 S. W. 350; Conatser v. State, 75 Tex. Cr. R. 91, 170 S. W. 314; Barkus v. State, 78 Tex. Cr. R. 38, 179 S. W. 1166; Casey v. State, 78 Tex. Cr. R. 174, 180 S. W. 673; Medlock v. State, 185 S. W. 566; House v. State, 189 S. W. 488; Holland v. State, 187 S. W. 944; Waters v. State, 196 S. W. 536. So that the evidence objected to was admissible as the issues stood at the time, and the objections to proceedings incidental thereto show no error. But the judge in explanation of the bills shows that after all the evidence was in as it was determined he would not submit manslaughter or suspended sentence, all said evidence was withdrawn from the jury, and they were instructed they could not consider any of it for any purpose whatsoever in a special charge requested by appellant.

In the Martoni Case, supra, it was held that even if such evidence had been inadmissible originally, when it was thus withdrawn in such a charge, the error of its admission presented no error. The authorities so establishing were cited and discussed at length. Also in the Waters and Holland Cases, supra, when such plea for suspended sentence had been filed, and such testimony admitted over objections, and later it was determined by the judge not to submit the issue to the jury, and the judge then withdrew the evidence from the jury, and told them not to consider it, was held the proper course to pursue, and no error was thereby presented.

On the question of suspended sentence it is the character of the accused at the time of the trial which is under investigation. Hence such evidence is not restricted to what it was before the offense was committed, but proof is admissible as to what it is at, as well as before, the time of the trial; and such proof can be made by the accused as well as any other witness who may know the facts.

Mr. T. J. Hall was an important witness for the state, and among other things testified in substance that he was at a certain point, and from there he could see appellant on her gallery, and just before she went across the street and shot and killed deceased, he did see her there holding a pistol in her hand behind her. Appellant attacked Mr. Hall and this testimony by him by having other witnesses' go on the ground after he testified, where they claimed Mr. Hall said he was, and that they experimented by looking therefrom and said, in effect, appellant could not have been seen with a pistol as Mr. Hall said he saw her. At the noon recess while the case was on trial, the county attorney had Mr. Hall to go with him and other witnesses on the ground and point out to them exactly where he was and where appellant was with the pistol, and they testified that appellant could have been so seen from where Mr. Hall was. Mr. Hall swore he pointed out the exact locations he and appellant were when he swore he saw her with the pistol. All this testimony was admissible, as has all the time been held by this court. Barnett v. State, 76 Tex. Cr. R. 565, 176 S. W. 580; Weaver v. State, 43 Tex. Cr. R. 340, 65 S. W. 534. See, also, Carter v. State, 39 Tex. Cr. R. 345, 46 S. W. 236, 48 8. W. 508; Rodriquez v. State, 32 Tex. Cr. R. 265, 22 S. W. 978, and cases cited therein; Pinkerton v. State, 71 Tex. Cr. R. 195, 160 S. W. 87; Batson v. State, 36 Tex. Cr. R. 606, 38 S. W. 48; Neely v. State, 56 S. W. 625; Matthews v. Thatcher, 33 Tex. Civ. App. 133, 76 S. W. 61; Railroad v. Alexander, 53 Tex. Civ. App. 125, 115 S. W. 648; Hart v. Railroad, 144 N. C. 91, 56 S. E. 559, 12 Ann. Cas. 706, and note. The case of Riggins v. State, 42 Tex. Cr. R. 474, 60 S. W. 877, cited by appellant, is not applicable. In that case the jury was permitted to go on the ground and make their own observations, and act thereon, instead of witnesses doing so and testifying.

The court, in the main charge, together with those given as requested by appellant, gave a full and fair charge in appellant’s favor on self-defense both from real and apparent danger, and on threats both communicated and uncommunicated, and sufficiently applied the law to the evidence. He did not err in refusing special charge No. 5 on the subject, requested by appellant. The court refused to give it as shown by the qualification of appellant’s bill, on the ground “that the court gave a charge on threats, both communicated and uncommuni-cated, and gave, as stated, a charge on the right of defendant to arm herself. In the court’s opinion, the special charge No. 5 was defective in law, and did not fit the facts.” There was no error in refusing to give said charge. In Crippen v. State, 189 S. W. 498, it was held:

“The law is settled that if the court in his charge does not limit the accused’s right of self-defense by a charge on provoking the difficulty, or otherwise, hut submits his right of self-defense on every defensive theory, it is not error to refuse to charge on his right to arm himself and seek an explanation. Williford v. State, 38 Tex. Cr. R. 396, 42 S. W. 972; Harrelson v. State, 60 Tex. Cr. R. 539, 132 S. W. 783; Holmes v. State, 69 Tex. Cr. R. 588, 155 S. W. 205; Fox v. State, 71 Tex. Cr. R. 322, 158 S. W. 1141; Strickland v. State, 71 Tex. Cr. R. 585, 161 S. W. 110; Carey v. State, 74 Tex. Cr. R. 117, 167 S. W. 366; Ford v. State [77 Tex. Cr. R. 252] 177 S. W. 1176.”

The court in no way limited appellant’s claimed self-defense.

Appellant contends the court erred in refusing a new trial on the ground of her claimed newly discovered evidence. It is unnecessary to go into any detail of this matter. The bill giving the evidence heard on this motion was filed long after the court adjourned for the term, and cannot be considered. Reyes v. State, 196 S. W. 533. But even if it could be, the claimed evidence of Fannie Calhound, Watson, and Williams was not and could not have been newly discovered in law. But if that as to the state’s witness Fannie Calhound could be so considered wholly to impeach her, it was largely for that purpose. In allowing the bill the court qualified it as follows:

“The trial of the case lasted three days. Mr. Hall was the first witness used by the state, and Fannie Calhound was used before the state rested, on the afternoon of the first day. Mr. J. A. Stanford, law partner of W. H. Forrester and one of the attorneys of record for the defendant, was the first witness to bring in question the possibility of seeing a person on Georgia Williams’ gallery from where the witness Hall stood. J. W. Watson and H. D. Williams could have inspected the ground after Hall testified just as Stanford did, and testified before the conclusion of the trial. The newly discovered evidence as to Fannie Calhound’s residence came from parties living in the immediate neighborhood, who were readily accessible at the time of the trial. The killing occurred nearly two years ago, and it is probable they are mistaken. Besides, their testimony is of an impeaching character. Moreover, the witness Hall testified he was standing somewhere about the sidewalk, and not on the sidewalk, as defendant claims in this bill.”

No error is shown by this bill.

The judgment is affirmed. 
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