
    LEWIS v. STATE.
    (No. 10996.)
    Court of Criminal Appeals of Texas.
    Oct. 12, 1927.
    Rehearing Granted Dec. 14, 1927.
    1. Criminal law ©=>823(15) — Instruction that, if jury had reasonable doubt as to whether defendant, prosecuted for assault, reasonably apprehended death or serious injury, to acquit, considered with main charge, held sufficiently to apply doctrine of reasonable doubt.
    In prosecution for aggravated assault, charge that, if jury found or had reasonable doubt as to whether defendant reasonably apprehended death or serious injury, to acquit, considered with main charge on reasonable doubt, held sufficiently to apply doctrine of reasonable doubt.
    2. Assault and battery (§==>96(3) — In prosecution for aggravated assault, charge on provoking difficulty held justified by evidence.
    In prosecution for aggravated assault, evidence held to justify charge on provoking difficulty.
    3. Criminal law ¡§=805(2) — In charge on seif-defense, reference to subsequent charge on provoking difficulty held not prejudicial error.
    In prosecution for aggravated assault, charge that, if jury believed defendant believed he was in danger of serious bodily injury or losing life, to acquit, unless they found under subsequent charges that defendant provoked difficulty and by his wrongful act brought on necessity of defending himself, ‘held not preju-dicially erroneous because of reference to provoking difficulty, in view of’ fact that requested instruction given covering self-defense did not refer to charge on doctrine of provoking difficulty and was entirely free from any other issue raised by evidence.
    4. Criminal law ¡§=>1120(8) — Bill of exceptions held not to show error in admitting testimony that defendant carried knife and that he was seen with ope'n knife.
    On appeal from conviction for aggravated assault, bill of exceptions, not negativing idea that testimony raised issue as to whether defendant carried knife, held not to show error in admitting evidence that defendant carried knife and that witness once saw him with open knife.
    5. Crimina! law-¡§=>829(5) — Refusal of instructions on self-defense, sufficiently covered by other instructions, held not error.
    In prosecution for aggravated assault, where court’s main charge and requested instructions given fully defined and appropriately applied law of self-defense, refusal of other instructions covering law of self-defense was not error.
    On Motion for Rehearing.
    6. Criminal law ¡§=>419, 426(10) — Witnesses <§=>383 — Officer’s testimony that witness stated that defendant had made general threats to kill negro held inadmissible as hearsay, though not as constituting attempt to impeach witness on immaterial and collateral matter.
    In prosecution for aggravated 'assault, where defendant’s witness on cross-examination denied telling officer that defendant stated he was going to kill negro by Christmas, testimony by officer that he had made such statement, defendant being absent, was inadmissible as hearsay, but not on ground that it was effort to impeach witness on immaterial and collateral matter.
    Commissioners’ Decision.
    Appeal from District Court, Wichita County; P. A. Martin, Judge.
    Willie Lewis was convicted of aggravated assault,- and he appeals.
    Reversed and remanded.
    Mathis <& Caldwell, of Wichita Palls, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   CHRISTIAN, J.

The offense is'aggravated '. assault; the punishment a fine of $50 and 6 months’ confinement in jail.

Appellant was convicted of an aggravated assault under an indictment charging him with an assault with intent to murder. The facts upon which the prosecution was based are briefly as follows: Appellant, with three others, went to a restaurant where Gus Reeves, the injured party, was working, and ordered a certain kind of pie. Not having the kind of pie they ordered, Reeves gave appellant and his companions three orders of peach pie, whereupon appellant stated to Reeves that he did not order that kind of pie, and Reeves told him that it was the only kind of pie he had. Appellant then cursed Reeves, calling- him a m- f- s — — of b-. Reeves told appellant that he was afraid of him (appellant). Appellant began cutting at Reeves over the counter, using what was termed an “East Dallas special” knife. In endeavoring to get away from appellant, Reeves backed down the counter towards the kitchen, but before he reached the kitchen door appellant had cut him between the fingers. Appellant followed Reeves to the kitchen, where he cut his hand and arm. Reeves secured a knife from a rack in the kitchen and stabbed and cut appellant. Appellant secured a butcher'knife when they reached the kitchen, with which he stabbed and cut Reeves. Appellant and Reeves were severely injured, and the knives used by them were shown to be deadly weapons. Reeves testified that after they reached the kitchen appellant said: “You m-f-r, I ought to kill you.”

Appellant defended on the ground that Reeves attacked him with a knife,, stabbed and cut him, and that he cut Reeves, with no intention of killing him, but for the purpose of stopping the attack and protecting his (appellant’s) life.

Appellant contends that the trial court erred in his charge in not applying the doctrine of reasonable doubt to his instruction on the law of self-defense. Inspection of the record discloses that the court gave a charge requested by appellant, which reads as follows:

“You are charged as part of the law in this case, if you find and believe from the evidence, or have a reasonable doubt thereof, that, at the time that the defendant assaulted Gus Reeves, if he did so assault him, that at that time the defendant had a reasonable apprehension of death or serious bodily injury, said defendant was justified in using all the force necessary to protect his person or his life; and it is not necessary that there be actual danger, provided said Willie Lewis acted on a reasonable apprehension of danger, viewed from the defendant’s standpoint at the time; and’-if you find that such reasonable apprehension of death or serious bodily injury existed at the time of the assault, if any by the defendant, you will find the defendant not guilty of any offense, and so say by your verdict.”

Considering the charge above quoted in connection with the court’s main charge, we are constrained to hold that the doctrine of reasonable doubt was properly applied to the instruction covering self-defense. In addition to applying the doctrine of reasonable «doirbt to the requested instruction on the law of self-defense, the court applied such doctrine generally to the entire case.

We are unable to agree with appellant’s contention that the court erred in submitting to the jury a charge on provoking a difficulty. The testimony in the record in our opinion authorized the court to submit that issue. See Branch’s Annotated Penal Code, §§ 1962—1954;. Monday v. State, 90 Tex. Cr. R. 8, 232 S. W. 831.

We do not think the court’s charge is subject to appellant’s criticism that the jury were not informed in the charge on self-defense that they should acquit appellant if they had a reasonable doubt that he believed he was in danger of death or serious bodily injury at the time of the assault on the injured party. The requested charge on this issue, hereinbe-fore set forth, and the court’s main charge, when considered together, sufficiently presented to the jury the issue of self-defense, viewed from appellant’s standpoint.

Appellant’s next contention is that the court’s charge on the law of self-defense is not distinct, in that said charge is not free from the issue of provoking the difficulty. Timely exception was taken to the charge, and the matter is now brought before us for review by appellant’s bill of exception No. 1. After applying the doctrine of self-defense to the facts, the court referred to the charges there-inafter given on the doctrine of provoking a difficulty, but in no manner attempted to give an instruction covering the doctrine of provoking the difficulty in immediate connection with the charge on self-defense. The jury were instructed, in substance, that they should acquit the defendant under the charge given to them on the law of self-defense if they believed that appellant believed himself in danger of losing his life or of serious bodily injury at the time he cut the injured party with a knife, unless they found under the charges thereinafter given that appellant, provoked the difficulty and by his own wrongful act brought on the necessity of defending himself. In the requested instruction given by the court covering the law of self-defense, no reference was made to the charge on the doctrine of provoking the difficulty, and such instruction was entirely free from any other issue raised by the evidence. In this condition of the record, we are unable to reach the conclusion that the reference of the court to the doctrine of provoking the difficulty could have resulted in injury to appellant. We therefore hold that appellant’s bill of exception in this respect discloses no prejudicial error.

By bill of exception No. 4, appellant complains of the action of the trial court in permitting the state to impeach appellant’s witness Robert Jones on an immaterial and collateral matter. The recitals in the bill show that the district attorney asked the witness Jones on cross-examination if he had not told Officer Timmons on the night of the assault that appellant had told him on the night before that he was going to kill him a negro by Christmas. The witness, being required to answer, denied that he made this statement to the officer, whereupon the officer was placed on the witness stand by the state and testified that the witness had made the statement to him. Appellant’s objection to this testimony was that it was an attempt to impeach a witness on an immaterial and collateral matter, and that the state was bound by the answer of the witness. The record discloses that the statement attributed to appellant had been made in the presence of the state’s witness Jessie Leroy about a week before tbe difficulty between appellant and Reeves. If, in fact, appellant bad made the statement under conditions that might properly have included the injured party in the threat, it would then have become material as bearing on appellant’s state of' mind at the time of the difficulty and more particularly as being pertinent to the issue of provoking the difficulty. The bill of exception is insufficient to negative the materiality of the testimony. Indulging the presumption that the ruling of the trial court was correct in admitting the testimony, we are constrained to overrule appellant’s contention that the matter inquired about was immaterial and collateral.- It follows that appellant’s objection to the admissibility of the testimony on the ground that it was an attempt to impeach a witness on an immaterial and collateral matter was not well taken.

By bill of exception No. 5 appellant complains of the action .of the trial court in permitting the state’s witness Jessie Leroy to testify that appellant carried a knife and that he once saw appellant with an open knife. Objection to this testimony was that it was irrelevant and immaterial. If there was any issue in the testimony as to whether appellant carried a knife, this testimony may have properly been relevant to such issue. There are no recitals in the bill of exceptions negativing the idea that the testimony raised such an issue. In this condition, the bill is insufficient to manifest error, and appellant’s contention must be overruled.

By bills of exception Nos. 6, 7, and 8 appellant complains of the action of the trial court in refusing to give certain instructions designed to cover the law of self-defense. An inspection of the court’s main charge and of the requested instructions given by the court, discloses that the law of self-defense was fully defined and appropriately applied to the facts of the case. Appellant’s bills therefore manifest no error.

Finding no error, the judgment is affirmed.

PER OURIAM. 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 Appellant’s Motion for Rehearing.

CHRISTIAN, J.

Appellant insists, in his motion for a rehearing, that we made an incorrect appraisal of his bill of exception No. 4. Our examination of the matter in the light of appellant’s motion convinces us that his contention is well taken. The bill shows that Ted Jones, a witness for appellant, had testified to material facts bearing on the issue of self-defense; that upon cross-examination of said witness by the state he was asked if he had not told Officer Timmons that appelllant told him (Jones) that he (appellant) was going to kill him a negro by Christmas; that the witness Jones" denied making such statement to Timmons; and that Tim-mons was then placed upon the stand by the state and testified that Jones made the statement to him. As shown by the bill, appellant was not present at the time Timmons had the conversation with Jones. Moreover, the bill shows that the matter had not been gone into by appellant. In our original opinion we discussed the matter complained of in this bill in the light of appellant’s objection that the testimony was improper, in that it was an effort on the part of the state to impeach the witness on an immaterial and collateral matter. We note now that the bill shows that appellant also objected to the testimony on the ground that it was hearsay. This objection was well taken. The testimony was hearsay, and was inadmissible even for the purpose of impeaching the witness. See Mitchell v. State, 84 Tex. Cr. R. 36, 204 S. W. 767. It is obvious that the facts elicited from the witness Timmons, under the guise of impeaching the witness Jones, were calculated to prejudice appellant.

We have not undertaken to discuss the remainder of appellant’s assignments of error.

Appellant’s motion for rehearing is granted, the judgment of affirmance is set aside, the judgment of the trial court is now reversed, and the cause remanded.

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. 
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