
    NEWELLS v. STATE.
    (No. 8701.)
    (Court of Criminal Appeals of Texas.
    April 29, 1925.
    State’s Rehearing Denied June 10, 1925.)
    1. Criminal law &wkey;>823(6) — Too restrictive charge on threats held cured by subsequent instructions.
    Court’s charge on threats, which was too restrictive in limiting manifestation of threat to acts or words spoken at time of killing, was cured by subsequent charge that if, in connection with all other circumstances and facts, defendant believed deceased was about to kill him, and acting under such belief he killed deceased, he should be acquitted.
    2. Homicide &wkey;>338 (2) — Testimony as to firing of gun near deceased’s house harmless.
    Permitting state’s witness to testify as to firing of gun near deceased’s house after homicide and away from scene thereof not error or harmful.
    3. Homicide <§=>163(1) — Reputation evidence of accused properly excluded in absence of predicate laid.
    It was not error in a murder case to exclude accused’s evidence as to his reputation for being a quiet, law-abiding citizen, in absence of laying of proper predicate therefor.
    4. Homicide <S&wkey;I63(l) — Not error to permit state to prove good reputation of deceased outside of county of domicile.
    It was not error in a murder case to permit state to prove the good reputation of deceased out of county where he lived.
    5. Criminal law <@=>1091 (11) — Bill of exceptions in question and answer form not considered.
    , Bill of exceptions in question and answer form will not be considered.
    6. Criminal law <&wkey;400(2) — Evidence of offense committed by accused prior te homicide improperly admitted.
    Testimony of witness that years before homicide he filed a complaint against accused for theft to which he pleaded guilty held inadmissible as not the best evidence.
    On State’s Motion for Rehearing.
    7. Witnesses <&wkey;>337(6) — Evidence as to charge of theft against accused in court not having jurisdiction inadmissible in contradiction or impeachment.
    In a prosecution for murder, it was error to admit evidence that, when witness was constable, he filed charge of theft against accused in justice court, to which accused pleaded guilty, such evidence not being admissible to contradict or- impeach accused, justice court not having jurisdiction of theft cases..
    Commissioners’ Decision.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    John Henry Newells was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Frazier & Averitte and Collins, Dupree & Crenshaw, all of Hillsboro, for appellant.
    Will M. Martin, Dist. Atty., of Hillsboro, and Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

Appellant was indicted and tried in the district court of Hill county, charged with killing Tucker Haywood with malice aforethought by shooting him with a gun, and convicted of manslaughter, and his punishment assessed at three years’ confinement in the penitentiary.

Appellant complains in several instances of the charge of the court, some of which relate to the charge on murder, which was eliminated by reason of a verdict for manslaughter. Appellant complains of the eleventh paragraph of the court’s charge, on threats, upon the ground that same is too restrictive, and of that portion wherein it is stated:

“And if at the time of the killing the deceased, Tucker Haywood, by some act then done or words spoken, if any, manifested an intention to execute the threat so made,” etc.

This contention would be well taken were it not for the whole paragraph of the charge, and for the remaining portion thereof, in which the court properly applies the law to the facts of the case, and in which, in the usual manner, the court charges the jury that if, in connection with all the other circumstances and facts in evidence, there was produced in the mind of the defendant the belief that the deceased was about to execute such threat, and if, acting under such belief, defendant shot and killed the deceased, to acquit him, and, in determining said matter or matters, if same produced in the mind of the defendant the belief that the deceased was about to execute such threat, and viewed from the standpoint of the defendant alone, that he would be justified in acting thereon. We think the whole paragraph of the charge, when taken together, shows no error upon the part of the court in this particular.

Appellant also complains of the action' of the trial court in permitting the state’s witness to testify that he fired off his gun near the house of the deceased after the homicide and away from the .scene of the homicide. We are unable to see any error in this particular, or at lea.st any harm done thereby to the defendant.

In several of the bills of exceptions appellant complains of the action of the court in not permitting him to prove his reputation for being a quiet, peaceful, and law-abiding citizen. The bills fail to show that the defendant laid the proper predicate for this testimony, and, in the absence of same, 'it was properly excluded upon objection by the state.

There is further complaint of the action of the court in permitting the state to prove the good reputation of the deceased out of the county where he then lived, because said witnesses were not acquainted with his reputation in the 'community at the time of the homicide. The authorities in this state are against the contention of the appellant, and the state was permitted 'to prove the reputation of the deceased in other communities, where he had resided prior to the date of the homicide, as well as in the community where he lived at the time •of the homicide.

Some of appellant’s bills are in question and answer form, which the statutes of this state prohibit us from considering, and the decisions of this court have repeatedly held under said statutes that such bills could not be considered. Some of the bills are not full enough to show the error complained of to this court, and for that reason we cannot consider same. In fact, after a careful examination of all of said bills, we fail to find any error, except in bill 19, where the court permitted the state to prove by the witness Satterfield that-years before the homicide said witness was constable in Hill county, and that he filed a complaint in the justice court.-charging the defendant with theft, to which the defendant pleaded guilty and paid a fine in said court. The appellant objected to this testimony because it was not the best evidence and for other reasons. This objection should have been sustained. Fannin v. State, 51 Tex. Cr. R. 41, 100 S. W. 916, 10 L. R. A. (N. S.) 744, 123 Am. St. Rep. 874; Fountain v. State, 90 Tex. Cr. R. 474, 241 S. W. 489; Lasater v. State, 88 Tex. Cr. R. 452, 227 S. W. 452.

We have carefully examined' the other assignments of error raised in the record, and fail to find any error therein.

For the reasons above stated, we are of the opinion that the judgment of the trial court should be reversed and the cause remanded, and it is accordingly so ordered.

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

On State’s Motion for Rehearing.

EATTIMORE, J.

The state moves for a rehearing on the ground that we erred in holding that the learned trial judge wrongfully permitted the state to prove by its witness Satterfield that when he was constable in Hill county, he filed a charge of theft in the justice court against appellant, to which the latter pleaded guilty and was punished by a fine. We have again reviewed the matter, but are unable to believe the state’s contention sound in this regard. The justice court has no jurisdiction of theft cases, and could not legally 'try and punish appellant for such offense. Hence such proof was not admissible to contradict or impeach appellant. The matter was also objected to because the record would be the best evidence, and this also was a good objection.

Believing the matter correctly decided, the state’s motion for rehearing will be overruled. 
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