
    Ed Cunningham v. The State.
    No. 8124.
    Decided May 21, 1924.
    Rehearing denied June 18, 1924.
    1. —Murder—Charge of Court — Manslaughter.
    Where, upon trial of murder, the court submitted murder, manslaughter, and self-defense, predicating adequate cause on deceased’s conduct towards both his sister and appellant, thus presenting the manslaughter issue from appellant’s standpoint, there is no reversible error.
    2. —Same—Charge of Court — Sef-Defense—Defense of Another.
    Where appellant predicated his exception to the court’s charge upon the claim that it omitted" an instruction, that appellant would have the right to kill to protect his sister and confines defendant’s right to act only in his own defense, but the record showed that such omission in the charge must have been thereafter remedied, when the court’s attention was called thereto, there is no reversible error, the same being otherwise correct. Following: Walker v. State, 89 Texas Crim. Rep., 76, and other cases.
    3. —Same—Requested Charges — Rule Stated.
    It has been repeatedly held by this court that it must be made to appear affirmatively that exception was reserved to the refusal of requested charges before they could properly be reviewed. Following: Craven V. State, 93 Texas Crim. Rep., 329, and other cases.
    4. —Same—Sufficiency of the Evidence.
    Where, upon trial of murder, the evidence, although conflicting, supported the conviction, there is no reversible error.
    5. —Same—Rehearing—Bill of Exceptions — Rule Stated.
    Where this court is only informed by the bill of exceptions that a witness heard some sort of an unusual noise (the character of which is not stated) and that upon going to the house of deceased he had learned that deceased had assaulted his sister, the same could at best be hearsay and there is no reversible error.
    Appeal from the District Court of Jefferson. Tried below before the Honorable E. A. McDowell.
    Appeal from a conviction of murder; penalty, ten years imprisonment in the penitentiary.
    The opinion states the case.
    
      Blaim, & Jones, for appellant.
    
      Tom Garrard, Attorney for the State, and Grover C. Morris, Assistant Attorney, for the State.
   HAWKINS, Judge.

Appellant is under conviction for the murder of John Cronea with an assessed punishment of ten years confinement in the penitentiary.

Appellant and deceased had been friends for several years and appellant was a frequent visitor at deceased’s home. Deceased and his wife lived in Beaumont. Louise Winslow, deceased’s sister, lived with them part of the time. On the day preceding the killing appellant came to the home of deceased and according to the testimony of both appellant and Louise Winslow the drinking of intoxicating liquor was indulged in by all of them including Mrs. Cronea. Mrs. Cronea denies that she drank or that any intoxicating liquor was used by any of the party at the time. It is agreed that early the next morning Mrs. Cronea complained of the loss of seventeen dollars which had been taken from the pocket of her dress during the night. Her testimony and Louise Winslow’s does not accord with that of appellant relative to this incident. The two women say that when Mrs. Cronea complained of the loss of the money appellant said he had it, returned twelve dollars, and agreed to repay the other five; that no hard feelings or disturbance of any kind occurred with reference to the matter; that deceased was perfectly satisfied with the reurn of the twelve dollars and the promise to repay the balance and so expressed himself. Appellant’s version is that during the preceding night something had been said about whether he had any money; that he had told deceased he was out of funds and might want to borrow some; that the next morning Louise Winslow was looking through his pockets for a match, pulled out the twelve dollars and called appellant’s attention to the fact that he did have some money; appellant denied knowledge of how the money got in his pocket and requested Louise to give it to him in order that he might return it to Mrs. Cronea; that a quarrel then ensued between deceased and his sister, deceased accusing her of having taken the money; that in the quarrel deceased struck or slapped his sister several times; that appellant remonstrated with him, whereupon deceased told appellant to keep out of the trouble, if not deceased would shoot him; that appellant told deceased if he would quit abusing his sister he would take her away from the house; that he and Louise did leave and were gone probably two or three hours. While they were away both appellant and Louise had another drink, or drinks, of whisky. The killing occurred almost immediately after their return to deceased’s home. The evidence of the two women and that of appellant is in sharp conflict as to the facts of the shooting. According to the women, in a few minutes after appellant and Louise returned appellant was seen by Mrs. Cronea passing through the house with deceased’s pistol in his hand; that she informed her husband that Cunningham was leaving with his pistol, whereupon deceased told appellant if he was going away not to take bis (deceased’s) pistol that he might need it; that appellant immediately turned and fired at deceased; that deceased ran through the house and fell in the yard just off the porch. Mrs. Cronea immediately went to a neighbor’s to telephone for the officers. Louise testified that after her brother was shot she intercepted appellant and put her hands on him in an effort to detain him until the officers could reach the place; that appellant struck her on the head; that the blow stunned her but she remembered passing on to the gallery and seeing her brother lying- in the yard, and that she fell upon the gallery. She was found lying on the gallery with much blood from a wound upon her head. Both Mrs. Cronea and Louise testifj*- positively that there was no fuss or quarrel, either between deceased and his sister, or among any of the parties present immediately before the shot was fired; they deny that any one screamed or that any licks were passed between anybody. Appellant's version of the transaction after the return of himself and Louise is substantially as follows:— That as he came into the house he noticed deceased’s pistol lying on the dresser, picked it up and passed through into the back part of the house intending to hide it; that when Louise came in deceased renewed his quarrel with her, using abusive language; that some licks were struck which he heard and that Louise screamed; that appellant turned back into the room and met her in the door with blood streaming from her head; that she asked him not to let deceased strike her again; that deceased was coming towards them, used a vile expression and said, “I will kill both of you s— o— b-, ’ ’ that deceased had something in his hand which appellant thought was an ice pick; that he fired at deceased under these circumstances. Appellant specifically denied that he struck Louise or that she in any way interfered with him when he left the house after the shooting. Two witnesses who lived near the Croneas testified that a short time before the shot was fired they heard a disturbance at Croneas’s house, heard something that sounded like licks and heard Louise scream, followed immediately by the shooting.

The court submitted murder, manslaughter and self-defense. He predicated adequate cause on deceased’s conduct towards both his sister and appellant, thus presenting the manslaughter issue from appellant’s standpoint. Some criticism of the charge upon manslaughter is found in the exceptions thereto, but considered in its entirety we do not think the oblections well founded. No special charge upon the subject was requested.

Appellant predicates one exception to the charge upon the claim that it omits an instruction that appellant would have the right to kill to protect Louise Winslow, but confines appellant’s right to act only in his own defense. If there was such omission from the charge when the exceptions were prepared it must have been remedied when the court’s attention was called to it by the exception for we find where the court did tell the jury in substance that if deceased had made an attack on either his sister or appellant which caused the latter to reasonably fear death or serious injury to himself or Louise Winslow appellant should be acquitted. In that part of the charge relative to the presumption of law against deceased if he was armed with a deadly weapon the court tells the jury if deceased was making an attack upon “appellant” it would be presumed that he intended to kill him, and does not here include deceased’s sister, but no exception is sufficiently specific to point out to the learned trial judge that any complaint was being urged to this part of the charge. Walker v. State, 89 Texas Crim. Rep., 76, 229 S. W., 527; Boaz v. State, 89 Texas Crim. Rep., 515, 231 S. W., 790; Rodgers v. State, 93 Texas Crim. Rep., 1, 245 S. W., 697; Richardson v. State, 91 Texas Crim. Rep., 318, 239 S. W., 218. A special charge appears in the record relative to appellant’s right to act in defense of Louise Winslow which was refused. No exception seems to have been saved to this action of the court. It does not so appear from any notation on the charge itself over the court’s signature, but only a notation that it was refused. It has been repeatedly held that it must be made to appear affirmatively that exception was reserved to the refusal of special charges before they were properly before us for review. Craven v. State, 93 Texas Crim. Rep., 329, 247 S. W., 515; Brooks v. State, 93 Texas Crim. Rep., 206, 247 S. W., 517; Hickman v. State, 93 Texas Crim. Rep., 407, 247 S. W., 518; Rhodes v. State, 93 Texas Crim. Rep., 574, 248 S. W., 679; Lindner v. State, 94 Texas Crim. Rep., 316, 250 S. W. 703.

■ The issues of fact were sharply drawn, and some witnesses both for the State and appellant were impeached upon material points in their testimony, but all these matters were for the jury which they determined for the State.

Finding no errors in the record which would authorize a reversal the judgment is affirmed.

Affirmed.

ON REHEARING.

June 18, 1924.

HAWKINS, Judge.

That our former opinion correctly disposed of the matters therein discussed is not challenged. Appellant complains, however, because we did not consider a bill of exceptions relative to the rejection of evidence from the witness Miles Roberta. The bill was not overlooked. Said witness was asked by appellant if a few days before the homicide he heard “anything.unusual” over at deceased’s home. Objection was sustained. The ruling appears to have -been correct, as the question was so general in its character as not to convey any idea of what was expected to be elicited as to the character of the “unusual” happening about which witness was interrogated. The bill states that if witness had been permitted to answer the question he would have said that either the day before, or second day before, the killing he had “heard an unusual noise at the home of deceased, and had gone there and learned that deceased had assaulted and struck his sister Louise Winslow.” If witness had proposed to describe a disturbance heard by him at the home of deceaed from which description the conclusion could have been reasonably drawn that it was a fight between deceased and his sister, or if witness would have testified that he saw deceased make an assault upon his sister, the rejection of such evidence under the facts of this case would have been error; but the bill does not recite that witness would have so testified. We are only informed by the bill that witness heard some sort of an unusual noise (the character of which is not stated), and that upon going to the house of deceased he had “learned” that deceased had assaulted his sister. The bill carries with it the unmistakable idea that witness would have given testimony hearsay in character and therefore presents no error. For this reason we did not discuss it in onr former opinion.

The motion for rehearing is overruled.

Overruled.  