
    DRAKE v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 7, 1912.)
    1. Homicide (§ 166) — Evidence—Admissibility.
    In a prosecution for murder, evidence held insufficient to support theory of state that accused killed deceased in order to marry his wife, so that evidence of divorce proceedings between accused and his wife, and accompanying circumstances, were inadmissible.
    [Ed. Note. — For other -cases, see Homicide, Dec. Dig. § 166.]
    2. Homicide (§ 157) — Evidence — Admissibility.
    In a prosecution for murder, it appearing that whatever ill will existed between defendant and decedent grew out of the fact that defendant testified in a suit by the wife of decedent for divorce, it' was proper to admit evidence that the suit had been tried, and that defendant was a witness, and, when he heard that the court had denied a divorce, any remark that he may have made; but it was error to admit the judgment in that suit, or any of the details of that trial, except in so far as defendant was connected therewith.
    [Ed., Note. — For other cases, see Homicide, Cent. Dig. §§ 288-292; Dec. Dig. § 157.]
    3. Homicide (§ 166) — Evidence —Admissibility.
    In a prosecution for murder, where a witness had testified as to association of defendant with the wife of decedent, her testimony that defendant had never “been sweethearts” with her, had never courted her in any manner, and had never attended social gatherings in company with her was material.
    [Ed. Note. — For other cases, see Homicide, Dec. Dig. § 166.]
    4. Witnesses (§270) — Examination—Ceoss-Examination — Scope and Extent.
    Where the state’s theory was that defendant desired to marry the wife of decedent and killed him to get him out of thé way, and decedent’s wife testified that defendant had never courted her, while the state was properly permitted to cross-examine her, it was not proper to permit cross-examination as to details about her and her husband’s life and marriage, their separation, and letters said to have been written by her to her husband after the separation, in which the defendant was not mentioned.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 926, 955-957; Dec. Dig. § 270.]
    5. Homicide (§ 203) —Evidence — Dying Declarations — Sense oe Impending Death.
    A dying declaration of decedent was properly admitted in evidence, where it was proven that decedent, at the time of making it, knew that his death was inevitable.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 430-437; Dec. Dig. § 203.]
    6. Homicide (§ 214) — Evidence — Dying Declarations — Competency oe Declaration as Evidence.
    Evidence of a dying declaration that the declarant was going to die, and his request to the witness' to tell bis mother that he was going to die like a man, that a coward shot him, was inadmissible, being such as be would not be permitted to testify to, if living.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 448-450; Dec. Dig. § 214.] '
    7. Homicide (§ 194) — Evidence — Admissibility.
    Where defendant testified that he carried a pistol on the day of the tragedy, and that when he got the pistol he bad in mind a threat of deceased against him, and carried it for protection, testimony that he asked the witness if. he would go on his bond if he got into trouble was admissible.
    [Ed. Note — For other cases, see Homicide, Dee. Dig. § 194.]
    8. Criminal Law (§ 412) — Evidence—Admissibility.
    The state’s theory being that defendant killed decedent because he was desirous of marrying decedent’s wife, and wanted to get decedent out of the way, testimony as to what defendant said when he heard the court had refused a divorce to decedent’s wife was admissible, though both defendant and the. person to whom the remark was addressed denied that he had used the language.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 894-972; Dec. Dig. § 412.]
    9. Criminal Law (§§ 656, 1166%) — Trial-Examination oe Witness by Court.
    In view of Code Cr. Proc. 1895, art. 767, providing that, in ruling upon the admissibility of evidence, the judge shall not discuss its weight, but simply decide whether it is admissible, nor shall he, previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case, the trial judge should refrain from the examination of witnesses, though such examination is not cause for reversal, unless prejudicial to the appellant.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1525; Dec. Dig. §§ 656, 1166%.]
    10. Criminal Law (§ 1090) — Appeal—Records — Bill oe Exceptions.
    Matters in regard to the evidence complained of in the motion for a new trial, as to which no bills of exception appear in the record, cannot be reviewed on appeal.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2816; Dec. Dig. § 1090.]
    Appeal from District Court, Eastland County; Thomas L. Blanton, Judge.
    Will Drake was convicted of murder, and appeals.
    Reversed and remanded.
    Scott & Brelsford and D. G. Hunt, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
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   HARPER, J.

Appellant was indicted, charged with murder. The court submitted the issues of murder in the first and second degree, manslaughter and self-defense, and appellant was convicted of murder in the second degree, and his punishment assessed at 16 years confinement in the penitentiary.

1. An exception was reserved to the action of the court in overruling appellant’s first application for a continuance. In view of the disposition that will be made of the case, we do not deem it necessary to discuss this assignment, as the matter will probably not arise on another trial.

2. Appellant was charged with unlawfully killing Ross Carter. Deceased had been married to Nora Scott. They lived together only a short time, and parted; her brother taking her home. Appellant had nothing to do with this separation, in so far as this record discloses. Mrs. Carter brought suit for divorce, and appellant was a witness in her behalf. The record does not disclose his testimony; but it does disclose that deceased claimed that appellant had sworn a lie in that case, and said “he was going to make him sign a lie bill or kill him.” The court, in qualifying certain bills of exception, states it was the theory of the state that appellant was desirous of marrying Miss Scott, or rather deceased’s wife, from whom he was parted, and that, she having failed in her divorce suit, he killed deceased to get him out of the way, and on this theory he bases his action in admitting certain testimony. If this theory has any proper basis in the testimony, it may not have been error in admitting the testimony; but, if it has no substantial basis in the testimony, then the error would be apparent in admitting these extraneous matters, which will be hereinafter referred to.

The only testimony offered by the state as a basis for this theory, that appellant was in love with deceased’s wife and desirous of marrying her, is based on the testimony of Venus Earp, who testified: “I know defendant, and I. know Mrs. Nora Carter, wife of the deceased. I have seen Drake and Nora Carter associated together at church. I don’t know how many times, but not more than once or twice. That was after Ross Carter and his wife separated. I never saw them associated together at any other time, at social gatherings or other places of amusement. I never did see them in a conveyance together at any time on their way to church or other places. I don’t remember seeing them in a hack but once or twice. I saw them in a hack once or twice. I was at a party at Jones Stanfield’s. I saw them there together that night. They talked together a little. I saw them talking together that night, but not much.” On cross-examination, he testified: “These two or three times that I saw the defendant in company with Nora Carter, it is true that he was simply sitting up in the seat with other members of the family; that there was a hack load of the family going to church. He sat in the seat with her brothers, and she was in the back seat with her mother. That is what I mean when I say I saw him associated with her. Outside of that, I do not pretend to say that I ever saw him keeping her company in the sense of sparking or courting her. X do not mean to say that I ever, in my life, saw Will Drake alone in her company, or alone with her, that I know of.”

This is all the testimony offered by the state to show intimacy between appellant and Mrs. Carter, and upon which it was attempted to build a theory that appellant had killed deceased that he might marry his (deceased’s) wife. Mrs. Scott’s family and brothers were farmers, as was the family of appellant, and lived in the same community, and attended the same church, and we do not think this testimony sufficient to raise the issue that appellant had killed deceased because of his love of the wife of deceased, or that he might marry her. And especially is this true in the light of the entire record. Defendant testified that he was engaged to be married to a Miss Martin at this time, and has been paying her attentions, and not Mrs. Carter. Mrs. Carter testified that defendant never at any time called to see her, or paid any attentions, or went with her to any entertainment. Her brother, Ered Scott, also so testified; and there was no evidence or circumstance in evidence upon which to build such theory, except the testimony of Venus Earp herein-before copied, and, this being insufficient to make that question an issue in the case, the court erred in permitting the witness H. R. Debenport, an attorney of Howard county, to testify that he had brought suit in behalf of appellant’s former wife for divorce against him; that appellant attended the trial, but made no defense, and told the attorney he wanted her to get a divorce; and that when the decree was entered he asked the attorney if he was a free man and could marry again. Appellant was not being tried in this case for any wrong he had done his former wife, and to permit the fact that he had so conducted himself towards his former wife that she had brought suit for divorce on grounds sufficient to obtain a divorce, that he was present and did not contest the grounds, and was only solicitous to know if he was also permitted to again marry, could and would only prejudice the jury against him. The killing did not grow out of any circumstance connected with the proceedings in the district court of Howard county, and it was error to admit this testimony in evidence.

Again, it appearing that whatever ill will that existed between the two men grew out of the fact that appellant had testified in the district court of Eastland county in a suit between Mrs. Nora Carter and her husband, it was proper to admit the fact that such suit had been tried and appellant was a witness, and, when he heard that the court had denied a divorce, any remark that he may have made; but it was error to admit, over objection of defendant, the judgment in that suit, or any of the details of that trial, except in so far as appellant was connected therewith. He had been summoned as a witness, and the fact that he testified that deceased claimed he had sworn a lie, and the threats of either or both of them, were admissible; but none of the other details, nor the judgment entry in that case, were admissible.

3. When the witness Earp had testified, at the instance of the state, as herein recited, appellant placed Mrs. Carter on the stand, and she testified: “I have been sworn. My name is Mrs. Nora Carter. I was formerly Nora Scott, and I am a daughter of the widow Scott, who lives down here by Okra. I am 18 years old. I married Ross Carter on the 20th day of December, 1909. I know the defendant in this case, Will Drake. I have known him a right smart while, about four or five years. Will Drake has never gone with me and kept my company socially in his life. Will Drake has never in any manner or time or form or way been sweethearts with me, or courted me, or anything of that kind. I have never at any time gone, in my life, or attended parties, or social gatherings of any kind, where I have been accompanied to or from them by Will Drake. There has never at any time been anything said by Will Drake to me, or by me to Will Drake, with reference to being sweethearts, or marrying, or anything like that. I have never in my life considered him in that light at all.” No other question was asked her by appellant, and no other testimony sought to be elicited by him. This was material in the light of the testimony of the state’s witness Earp.

Of course, the state should have been and was permitted to cross-examine her on this matter; but the state should not have been permitted, on cross-examination, to go into details about her and her deceased husband’s life and marriage, the separation, and letters said to have been written by her to her husband after the separation. Appellant was in no way connected therewith; it was not claimed he was the cause of the separation, and nothing in evidence suggests it. He was not mentioned in the letters said to have been written by her to her husband after the separation. In fact, if said letters were written (a fact she denied), they would indicate she loved her husband, and no other person, and she was being kept away from him by her family. These matters did not tend to shed any light on the killing, cause of the killing, or any other fact which would show or tend to show whether appellant was guilty of an unlawful killing, or was justifiable, and should not have been admitted in evidence. The letter introduced in evidence, and the other evidence adduced on cross-examination, that her brothers sought to prevent the witness from being with her husband (the deceased), and one of her brothers had carried her away, and that her family and brothers would not let her write to her husband, etc., have no place in this trial, and should not have been admitted in evidence.

4. The dying declaration testified to by witness Livingston was properly admitted in evidence. It was sufficiently proven that deceased at that time knew that his death was inevitable, and was made under circumstances which authorized its introduction in evidence. It was the version of deceased of the way the shooting occurred.

5. But we do not think that the evidence of the witness S. F. Maddison should have been admitted in evidence. While it is, perhaps, true that at the time deceased made the statement to witness he was conscious of approaching death; yet the statement itself is inadmissible. If deceased had been living, he would not have been permitted to thus testify, and his being dead would not render admissible any evidence as his testimony which would not be admissible, were he living. The witness Maddison testified: “Deceased called me to him and said: ‘Sep, I am shot. I am going to die. Tell my poor mother that I am going to die like a man; that a coward shot me.’ ” This in no way shed light on the incidents leading up to the difficulty, the motive for, or the conduct or words of the parties before or at the time of, the unfortunate difficulty. As we understand the law, a declaration made by a deceased person, to be admissible in evidence, must be such a statement as the person, if living, would be permitted to testify to, and this evidence, not coming within that rule, should not have been admitted.

6. There are some other bills of exception in the record; but we do not deem it necessary to discuss them at length. The three in regard to jurors, as qualified by the court, present no error. We have held that the dying declaration, as testified to by the witness Livingston, was admissible in evidence, and this bill presents no error.

7. The testimony of the witness Sam Williams, that defendant asked him that day, “If I get into trouble will you go my bond?” became admissible in the light of defendant’s testimony that he carried his pistol that day, and at the time he got the pistol he had in mind the threat of deceased, and carried it for protection.

8. The testimony of the witness Will Carter as to what defendant said to Fred Scott at the time he heard the court had refused Mrs. Carter a divorce was admissible. It is true defendant and Fred Scott both denied defendant had used such language; but this was a question to be decided by the jury, and the court did not err in admitting it in evidence.

9. As hereinbefore stated, the court erred in admitting in evidence the matters complained of in bills of exceptions Nos. 7, 8, 11, and 12, and these bills present such errors as will cause a reversal of this case; and, while the action of the court in interrogating witnesses is not complained of in a way that we would discuss it, only that the case must be reversed on other grounds, we feel that, perhaps, in view of another trial, it is, perhaps, better to caution trial judges about engaging in this practice and developing evidence which had not theretofore been elicited in the case. It may prevent the reversal of cases in the future. In the case of Harrell v. State, 39 Tex. App. 225, 45 S. W. 581, it is said that this court will not reverse for such conduct, unless the conduct is such as to be prejudicial to the appellant, but that such conduct is very reprehensible, adding: “Our Code of Criminal Procedure is very particular in regard to this matter. Article 767 provides: ‘In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he at any stage of the proceedings previous to the return of the verdict make any remark calculated to convey to the jury, his opinion of the case.’ Now, in the examination of a witness, however fair-minded the judge may be, it would be almost impossible for him to so conduct it as not to suggest in some measure that he is on one side or the other. And, moreover, we have noticed that, when the court attempts to thus usurp the functions of counsel, he is apt to ask questions that are leading in character, and that are otherwise objectionable. By carefully attending to his own duties and conserving his own functions, he will best be able to hold the scales of justice impartially as between the counsel who are managing the case for and against the state; and, whenever he does interfere, it is generally at the expense of his own authority and dignity, which should be rigidly guarded, in order that he may administer the law with fairness and impartiality, and with that authority and power which pertains to the office. We cannot commend the action of the judge in his attempt to interfere with the province of counsel for the state in the examination of witnesses, and, if it appeared to us that such interference on his part was calculated to prejudice the rights of the appellant, we would not hesitate to reverse this case. Such interference on,the part of a judge can never be called for.”

10. There are some matters in regard to the evidence complained of in the motion for a new trial to which there were no bills of exception reserved, at least none appear in the record, and, of course, these matters we cannot review.

11. The criticisms of the court’s charge on self-defense and manslaughter are not justified, when the charge is read as a whole; but for the errors above pointed out this judgment is reversed, and the cáuse is remanded.  