
    WILHEIT v. STATE.
    (No. 10907.)
    Court of Criminal Appeals of Texas.
    May 18, 1927.
    Rehearing Denied Oct. 19, 1927.
    1. Criminal law <&wkey;>l 170(4) — Exclusion of opinion that victim of assault was trying to shoot defendant held not error, in view of witness’ detailed testimony.
    In trial for assault to murder, exclusion of witness’ opinion that victim was trying to shoot defendant with a gun at time of assault held not error, where witness testified in detail as to all facts within his knowledge and to his own movements during fight.
    2. Homicide &wkey;>l83 — Evidence of defendant’s suit and judgment against city, after assault on marshal, for wrongful impounding of stock, held inadmissible.
    In trial for assault to murder city marshal, who had impounded some of defendant’s cattle, testimony that defendant brought suit against city after assault and recovered judgment for wrongfully impounding stock, and petition and judgment in such suit, held inadmissible; whether impounding was authorized being immaterial.
    3. Criminal law &wkey;l09l (3) — Bill of exception, not showing evidence expected to be developed by questions excluded, presents no error.
    Bill of exceptions, not showing what evidence was expected to be developed as result of questions on cross-examination, to which objection was sustained, presents no error.
    4. Witnesses <&wkey;245 — Bill of exception to exclusion of inquiry as to matters already in testimony presents no error.
    Bill of exception showing, as qualified by trial judge and borne out by statement of facts, that inquiry excluded by court was repetition of matters already in testimony, presents no error.
    5. Assault and battery <&wkey;92 — Evidence held to support conviction of aggravated assault.
    Evidence held sufficient to support conviction of defendant for aggravated assault in trial for assault to murder.
    On Motion for Rehearing.
    6. Criminal law <&wkey;7l9(I)— Prosecutor’s statement that defendant and others “gang-mobbed” victim held not unfair or hurtful inference in trial for assault to murder.
    In trial for assault to murder, state’s attorney’s statement that defendant got his son and son-in-law and that they “gang-mobbed” prosecuting witness held not an unfair or hurtful inference from evidence.
    7. Criminal law <&wkey;l 171 (6) — Argument that defendant, tried for assault to murder city marshal, who impounded his cattle, had turned some 60 head out of pound, held not prejudicial.
    In trial for assault to murder city marshal, who had impounded some of defendant’s cattle, argument of state’s attorney that defendant had turned some 60 head of his cattle out of pound held not prejudicial, where defendant testified that he had 60 head of cattle, which passed from one ranch to another through city, and nothing appeared to show that jury was affected by attorney’s statement.
    8. Homicide <&wkey;244(i), 245 — Evidence heid to support verdict against defendant on issues of self-defense and defense of another in trial for assault to murder.
    In trial for assault to murder, evidence- held sufficient to support jury’s finding against defendant on issues of self-defense and defense of another, as viewed from defendant’s standpoint.
    Appeal from District Court, Eastland County; Elzo Been, Judge.
    Tandy Wilheit was convicted of aggravated assault, and he appeals.
    Affirmed.
    Grisham Bros, and Chastain & Judkins, all of Eastland, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both .of Austin, for the State.
   HAWKINS, J.

Appellant was tried upon an indictment charging him with assault to murder W. C. McGuire. Conviction of aggravated assault resulted, and his punishment was assessed at a fine of $800 and 90 days’ imprisonment in the county jail.

McGuire was city marshal of the town of Desdemona. Appellant Owned a number of cattle. McGuire, acting in his official capacity, had impounded some of them. Appellant insisted that the town had no ordinance authorizing this to be done. McGuire told appellant he was acting under directions from the aldermen and mayor. The cattle had been in the pound for several days when a fight occurred between appellant and McGuire, brought on by appellant charging McGuire with failing to feed and water the impounded stock. The evidence of the state indicates that appellant was the aggressor. The evidence of appellant is to the contrary. In this fight appellant was considerably worsted, receiving a broken jaw, some teeth knock ed out, and one eye bruised and closed. After appellant realized that McGuire had gotten the best of the fist fight he picked up a rock, apparently to renew the fight, whereupon McGuire drew his pistol and made appellant throw the rock down. About the time the fight ended Norris, a son-in-law of appellant, came up. He took no part in it, but expressed some indignation at the treatment of appellant at the hands of McGuire.’ Appellant made some talk that McGuire could not arrest him, to which the latter replied that, if it became necessary to do so, he could do it. McGuire went to the mayor’s house to report to him what had occurred. Appellant found one of the aldermen, who went with him to the pound to investigate appellant’s complaint that the stock had not been properly fed and watered. While they were at the pound Alton Wilheit (a son of appellant) and appellant’s two sons-in-law, Norris and McDonald, all appeared on the scene. When Alton observed his father’s appearance he inquired where the “s-of a b- was,” referring to McGuire. The •state’s evidence is to the effect that to this inquiry appellant said nothing, while appellant’s is that he told Alton to stay out of it; that the fight was over; and that McGuire was out of town. After Alton made the inquiry he (Norris) and McDonald started toward the business part of town, which was only about a block away. About the time they reached a point near the post office McGuire and the mayor drove up in a car. As soon as McGuire got out of the car Alton asked him if he (McGuire) would fight him fair. McGuire replied in the affirmative, but asked him to wait a minute. About this time McDonald struck McGuire from behind, and according to the state’s evidence all of them grabbed McGuire.

He testified that he drew his pistol and fired at McDonald, but missed him on account of some one having hold of his hand. He says he was trying to shoot all of them because all of them were on him. A considerable scufille ensued over the pistol and the parties had gotten McGuire down when appellant came running upon the 'scene with a rock in his hand, with which he struck McGuire on the head, fracturing his skull. Appellant was still at the pound when he heard the pistol shot. He says he thought McGuire had killed his son, and that he came as rapidly as he could to the scene of the fight'; that when he got there he did not see his son, and thought he had already been killed and that appellant was then trying to kill his son-in-law. In this connection appellant testified that he knew McGuire had a pistol, but admits that he saw none in McGuire’s hand at the time the rock was used, and that he saw no pistol pointing towards either his son or son-in-law when he came upon the scene of the fight. Without any limitation upon appellant’s rights depending on how the last fight arose, or who may have been the aggressor in it the court instructed the jury that, if it reasonably appeared to appellant as viewed from his, standpoint that his own life or person or that of his son or son-in-law was in danger at the hands of McGuire at the time appellant struck with the rock, he would be guilty of no offense. Under this instruction the jury rejected appellant’s claim that his act was in defense of his son, or son-in-law, but attributed appellant’s act to some other motive.

Appellant complains because he was not permitted to prove by the witness Murphy that it appeared to him that McGuire was trying to shoot with the gun at the time, appellant hit him with the rock. This witness was permitted to testify in detail as to all the facts within his knowledge and to his own movements while the fight was’ in progress. We think the court committed no error in excluding the witness’ opinion. Hanners v. State, 104 Tex. Cr. R. 442, 284 S. W. 554; Harris v. State, 101 Tex. Cr. R. 83, 274 S. W. 568; Dunne v. State, 98 Tex. Cr. R. 7, 263 S. W. 608.

Appellant proposed to prove by Murphy who was mayor of Desdemona at the time of the trouble that appellant subsequently to the assault had brought a suit against the city for damages for wrongfully impounding his stock and had recovered a judgment. He also offered in evidence his petition in that suit and .the judgment in his favor. Complaint is brought forward because of the rejection of said evidence. Appellant offered this evidence for the purpose of showing that McGuire was in the wrong and acted maliciously and illegally in impounding appellant’s cattle. We have been unable to see the pertinency of this proposed testimony as throwing any light upon the question the jury was called upon to solve in the present case. The assault occurred in February, 1926. It is apparent from the record that the suit was filed subsequently although the exact date is not shown. The judgment was not rendered until September, 1926, seven months after the assault was committed. Appellant may have been justified in his contention that the city of Desdemona had no law authorizing the impounding of his cattle, but the judgment could in no wise justify an-assault made by appellant upon the marshal of the city seven months before. Appellant had-the benefit of evidence that he was claiming that the impounding of his stock wass illegal and the court gave him the benefit of it by instructing on aggravated assault to the effect that any condition or circumstance which would cause an “aggravated assault” state of mind in a prosecution for assault to murder would be adequate cause. The conviction was for aggravated assault only. It appears from the evidence that impounding the stock was only the remote incident leading up to tide fight. The first fight between appellant and McGuire grew out of appellant’s accusation that McGuire had neglected to properly feed and water the stock. It is undisputed that the second fight was precipitated by the son and son-in-law of appellant in resentment because McGuire had severely punished appellant in the first encounter. We have examined all the authorities submitted by appellant as supporting his contention that the rejected evidence should have been admitted, but think none of them authorize it, and conclude that the court committed no error in excluding the proffered testimony. Incidentally we remark that, while it appears from the petition that McGuire was made a party to the civil suit, yet the judgment recites that appellant dismissed as to him.

Bill of exception No 4 complains because objection wa>s sustained to certain questions asked McGuire by appellant on cross-examination. The bill does not show what evidence was expected to be developed as a result of such questions. In this condition the bill presents no error.

Bill 5, as qualified by the trial judge, shows that the inquiry was a repetition regarding matters already in testimony. The qualification is borne out by the statement of facts.

Appellant sought to'go into matters relative to the impounding of his cattle which occurred subsequent to the assault. The court approved the bill, with the explanation that counsel was permitted to go into those matters which had occurred before the trouble, but not as to those occurring subsequently. Our discussion of other bills raising the same question disposes of the bill presenting this matter.

The only other bill relates to certain argument of the district attorney to which appellant objected. The bill recites that appellant requested the court to instruct the jury not to consider the argument, but that the court declined to do so, whereupon appellant excepted. The court appended a qualification to this bill, which was accepted by appellant, stating that he did instruct the jury not to consider for any purpose the argument deemed objectionable. In view of this, we think no such error appears as calls for a reversal.

Appellant’s" contention that the judgment should not be permitted to stand' in view of the evidence, we think, is groundless. The court gave a charge which seems to have been entirely acceptable to appellant, as no' objection appears to have been made thereto. The issues raised by the evidence were properly submitted to the jury and we find no reason authorizing this court to disturb their verdict. -

The judgment is affirmed.

MORROW, P. J., absent.

On Motion for Rehearing.

BATTIMORE, J.

Appellant urges in his motion that we failed to attach sufficient importance to the alleged error resulting from the argument made by the state’s attorney. As far as the bill of exceptions shows, said state’s attorney was merely arguing his inferences from the testimony. It is apparent from the record that, after appellant had a fight with McGuire in which he seemed to get the worst of it, he met his son and possibly his son-in-law and that these latter men went to where McGuire was and began a fight with him; also that almost immediately after this fight began appellant rushed up and struck McGuire in the head with a rock. We are not disposed to hold it an unfair or hurtful inference for the state’s attorney to say that appellant got his son and son-in-law and that they gang-mobbed McGuire. Nor do we think the bill shows that the other argument, to wit, that appellant had turned some 60 head of his cattle out of the pound, was capable of any injurious effect. Appellant himself testified that he had 60 head of cattle; that they passed from one ranch to another through the town of Desdemona, and thei’e appears nothing to show that the jury was in any wise affected by the proposition that appellant turned that number of cattle out of the pound. The bill of exceptions complaining of this argument sets forth only the objections made thereto and in no wise certifies or brings before us what in fact was said by the state’s attorney.

Nor are we in accord with the contention that the testimony of Mr. McGuire himself shows that appellant was justified in making the assault. McGuire said that he was simultaneously assaulted by three men, one of whom was choking him and the others were striking him, and that in self-defense he drew his pistol and fired. He and other witnesses further testified his assailants then bent him nearly over and almost had him on the ground when appellant struck McGuire in the head with a rock. As stated in the original opinion, the court submitted fully and correctly the law of self-defense and the defense of another as viewed from appellant’s standpoint. We do not think the record devoid of evidence supporting the finding of the jury on these matters.

The motion is overruled. 
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