
    THOMPSON v. STATE.
    (No. 9288.)
    (Court of Criminal Appeals of Texas.
    June 3, 1925.
    Rehearing Granted Oct. 21, 1925.)
    1. Homicide <©=5192 — Defendant’s statement heard by witness held admissible, though not in accord with predicate for impeachment of defendant.
    In murder trial, where state contended that defendant was aggressor in seeking to take pistol from deceased forcibly, testimony as to hearing defendant say in conversation, which he had denied, that he would buy gun if person to whom statement was made would get it, and that latter was talking too loud, helé admissible as original evidence that defendant contemplated obtaining or was after pistol, though statement was not in accord with predicate for impeachment of defendant.
    2. Witnesses <§=»405( I)— Cross-examination and admission of testimony as to where defendant’s witness had his horse hitched at time of homicide held not prejudicial, nor erroneous, as impeaching him on immaterial issue.
    In murder trial, cross-examination of defendant’s witness, who state contended acted with defendant throughout and urged difficulty resulting in homicide, as to -where he had his horse hitched on night thereof, and admission of testimony that it was hitched at another place than that testified to by him, helé no* prejudicial, nor erroneous, as impeaching witness on immaterial issue, but admissible to show attitude of such witness.
    On Motion for Rehearing.
    3. Witnesses <@=>401, 465(1) — Admission of testimony that defendant's witness made statement, denied by him on cross-examination, held not error.
    In murder trial, admission of testimony as to hearing defendant’s witness ask defendant before killing whether he was going to let deceased get away, which such witness, on cross-examination, had denied saying, held not error as impeaching him on immaterial matter, or as permitting state to impeach its own witness, in view of Code Cr. Proe. 1911, art. 811, where such witness, on direct examination, had detailed part of conversation with defendant in which such statement was made.
    4. Witnesses <@=>370(1) — Testimony as to hearing remark of witness held not inadmissible as immaterial, being indicative of bias in favor of accused and prejudice against deceased.
    In murder trial, testimony as to hearing defendant’s witness ask defendant whether he was going to let deceased get away Keld not inadmissible as impeaching witness on immaterial matter; such remark denied by him tending to show bias in favor of accused and prejudice against deceased.
    5. Witnesses <@=>372(1) — Animus or motive of defendant’s witness may be inquired into by state without making him its own witness.
    Animus or motive of witness testifying adversely may be inquired into by state for purpose of laying predicate for his impeachment without making witness its own; witness’ motive not being regarded as collateral or irrelevant.
    6. Homicide <@=>300(!3) — Requested charge on seif-defense held erroneous as ignoring question as to who began difficulty.
    Defendant’s requested charge, in murder trial, that he had right to follow deceased and continue to shoot as long as there was apparent danger, held properly refused as ignoring question as to who began difficulty.
    7. Homicide <@=>300(8) — Evidence held to require instruction on defendant’s right to pursue deceased.
    Evidence, in murder trial, that deceased drew pistol, fired twice at defendant, then retreated with pistol still in threatening attitude, and later fired two more shots .at defendant, held to require instruction on defendant’s right to pursue deceased as long as necessary from defendant’s standpoint for protection of his own life if he was not aggressor.
    8. Homicid'e <@=>120 — One may pursue adversary as long as ^necessary for protection of own life.
    If it becomes necessary, in exercise of right of self-defense, to pursue adversary, one may lawfully do so as long as such necessity continues for protection of his own life.
    Appeal from District Court, Shelby. County; Chas. L. Braehfield, Judge.
    Ed. Thompson was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    Sanders & Sanders, of Center, for appellant.
    Tom Garrard, State’s A tty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was convicted in the district court of Shelby county of the offense of manslaughter, upon an indictment charging him with murdering one Lamar Blount, and his punishment assessed at confinement in the penitentiary for a term of five years.

Bill of exceptions No. 5 complains of the action of the trial court in permitting the state upon cross-examination to ask the appellant while upon the stand if he didn’t have a certain conversation with one Will Polley relative to having a gun and that he wanted it, which the appellant denied any such conversation with said Polley about any gun, and the state introduced the witness Singleton, who testified that, prior to the homicide, he heard the defendant in a conversation with said Polley saying:

“If you will get the gun, I will buy it. * * * Boy, you are talking too loud; the church deacons are going to raise a racket about talking too loud.”

The objection being, to such testimony, that it was hearsay and was an attempt to impeach the defendant on an immaterial issue. We cannot agree with this contention. The record discloses that the homicide arose between the deceased and appellant over a pistol that the defendant had sold to one Matlock which the deceased had purchased, from said Matlock and the defendant was seeking to recover said pistol from the deceased at the time of the homicide, it being the contention of the state, and if the state’s witnesses were to be believed by the jury, that the defendant was the aggressor in bringing on the difficulty in seeking to forcibly take from the deceased at the time the pistol in question. We believe that this evidence was admissible for the purpose of showing to the jury that the defendant was contemplating obtaining the possession of the pistol, or tending to show that he was after the pistol in question, and there was no error upon the part of the court in admitting same. .

In bills of exception Nos. 8 and 9, the appellant complains of the court’s action in permitting the state, upon cross-examination of the defendant’s witness Garrett, to ask him if he did not state to the defendant before the killing, “Are you going to let that negro get away?” which was denied by said witness, and in permitting the state to prove' by the witness Singleton that he did hear the said Garrett prior to-the killing make such statements to the defendant; it being contended by the defendant that said testimony was prejudicial, and was impeaching the witness on an immaterial matter.

Complaint is also made to the action of the court in permitting the state, on cross-examination, to ask said witness Garrett where he had his horse hitched on the night of the homicide, to which he replied it was close to the spot where the difficulty began, and then to the action of the court in permitting the state to prove by the state’s witness Matlock that said witness Garrett had his horse hitched at another place and near the church; it being urged that said testimony of the state was prejudicial to the defendant as shown in said bills, and that it was impeaching the witness on an immaterial issue. We cannot agree with either one of the contentions above urged, for the reason that if the state’s witnesses are to be relied upon in the case, and if the state’s theory was correct, the defendant’s witness Garrett was acting with the defendant all along, and in effect was urging the difficulty that resulted in the homicide, and was present during all of the entire controversy between the defendant and deceased, and was taking a very active part therein. If this were true, the state would certainly be entitled to introduce any fact or circumstance which would be of benefit to the jury in showing the attitude of the defendant’s witness, and we fail to see any error in the action of the court in admitting this testimony.

In bill of exceptions No. 13 complaint is made that the court committed error in refusing to submit to the jury his special charge No. 1, as follows:

“I further charge you as a part of the law in this case that the defendant has the right to follow and to continue to shoot as long as it appeared to him that there was danger.”

The court, in his general charge, charged the law fully of self-defense embodying apparent and real danger, concluding that with the following statement:

“But the party assaulted may continue to shoot as long as it appears to him there is danger.”

After a careful consideration of the evidence in the ease and the court’s charge thereon, we are of the opinion that the complaint made by appellant is not tenable, and that the court fully charged tjie law of this case as raised by the evidence thereon. The record fails to _ disclose any issue raised in the case demanding a special charge of the kind requested by the appellant as above set out. There was no witness, including the defendant himself, that testified to any facts which raised that issue. In fact, the appellant himself testified after the first shot was fired- by the deceased:

“I was not expecting any thing. We all broke and run. I was scared like the rest. As to how come me to go down the road after Lamar Blount, ,1 will say that is the way my face was. If I had been turned back the other way, I suppose I would have run back the other way. Just as soon as I saw I was headed for Lamar Blount, I stopped. He had done turned and shot me then.”

The above is the nearest to any statement from any witness tending to bring in question the point sought to be covered by said special charge, and it will be readily seen that the defendant did not contend that, at the time he shot and killed the deceased, the deceased was seeking to reach any point of vantage from which to shoot and kill him, and we are therefore of the opinion that the court was clearly right in not submitting this issue to the jury. •

After a careful consideration of the entire record, we fail to observe any error committed upon the trial of this case that would warrant this court in reversing same, and said judgment of the trial court is therefore affirmed.

PEB 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 Motion for Rehearing.

MORROW, P. J.

Appellant insists that we misunderstood bill of exceptions No. 5. We think not. It appears in the- bill that Austin Singleton testified as follows:

“I beard the defendant, Ed. Thompson, in a conversation with Will Polley, say, ‘If you will get the gun, I will buy it,’ and Ed. said, ‘Boy, you are talking too loud.’ ”

It is true that this statement was not in accord with the predicate laid for the impeachment of the appellant, but it seems to have been admissible as original testimony.

Arthur Garrett was called by the appellant as a witness and gave testimony favorable to the defense. In the course of the direct examination, Garrett testified that, on the night of the homicide, he was present at church in company with the appellant, and that he engaged in a conversation with the appellant, a part of which he detailed in his direct examination. He also detailed a conversation which he claimed to have overheard between the appellant and Lamar Blount, the deceased, in which the ownership of a pistol was discussed; Blount claiming to have bought the pistol, and appellant claiming that it belonged to him. State’s counsel asked the witness Garrett if during the conversation he had not said to Thompson with reference to Blount: “Are you going to let tliat negro get away?” Garrett denied making tlie statement. Eater tlie state called tlie witness Singleton, wlio testified that Garrett did make the remark mentioned under the circumstances detailed. Objection was made upon various grounds, including the contention that it was an impeachment upon an immaterial matter, and further that it was permitting the state to impeach its own witness. This claim is based upon the fact that the cross-examination was not confined to the scope of the original examination. As we understand the record, appellant having introduced, by Garrett, a part of the conversation with the appellant, it was the state’s right, on cross-examination, to develop other parts of the conversation relating to the same subject-matter. See article 811, O. O. P., where this right is conferred by statute. The testimony elicited by the state from Garrett was not foreign to his testimony upon the original examination, but, on the contrary, related to the same matter, namely, the conversation in which he and the appellant engaged with reference to the deceased. Moreover, it was not, in our judgment, immaterial because the remark imputed to Garrett tended to show interest in the matter; that is, bias in favor of the accused and prejudice against the deceased. The remark “Are you going- to let that negro get away?” was certainly susceptible of the interpretation mentioned when considered in the light of ,the other circumstances to which the witness Garrett testified upon behalf of the appellant. The animus or motive of a witness giving adverse testimony may be inquired into by the state without making the witness its own. The motive of the witness is not regarded as collateral or irrelevant. See Watson v. State, 9 Tex. App. 237, and many other cases collated in Branch’s Ann. Tex. P. C. p. 94, § 163; Underhill’s Crim. Ev. (3d Ed.) p. 505, note 36. An inquiry of the character mentioned for the - purpose of laying a predicate for impeachment is permissible. See Harvey v. State, 37 Tex. 365, and numerous other cases cited in Branch’s Ann. Tex. P. O. p. 109, § 179. In our judgment, the facts before us do not come within the purview of the rule which forbids a party from contradicting a witness as to collateral matters which are immaterial, and which are called out by him on cross-examination.

According to the evidence, the deceased, Blount, and the appellant, Thompson, met at a gathering. Blount had a pistol which appellant claimed to belong to him. Blount declared that he had bought the pistol from another party. According to the state’s testimony appellant told Blount that the pistol was not paid for and that it would be taken away from him by the appellant. At this juncture, according to the state’s evidence, appellant drew his pistol, but, before he was able to cock it, Blount drew his pistol and fired twice. After firing, he ran away. Appellant pursued and overtook Blount, whose pistol was discharged twice. Appellant then fired and inflicted the fatal wound upon Blount. Appellant’s testimony was to the effect that, when he demanded his pistol, Blount drew his pistol and fired twice, one of the shots striking the appellant, and another striking his companion, and that it was not until after these shots were fired that the appellant drew his pistol. He then pursued Blount who fired two additional shots at the appellant, one striking him before his pistol was discharged.

Appellant excepted to the court’s charge on self-defense because it failed to embrace the law applicable to the facts in that it ignored the issue as to the right of the appellant to pursue the deceased. Upon this issue, in addition to the exception, appellant presented a special charge to the effect that he had a right to follow the deceased and continue to shoot as long as it appeared that there was danger. The refusal of the special charge could not be regarded as error, for the reason that it took no note of the issue of fact touching the beginning of the difficulty. If the state’s testimony was true, the appellant, after demanding. that the decease^ deliver the pistol, threatened to take it from him, and at the same time drew his pistol. The deceased then drew his pistol, but, owing to the fact that his was a self-acting pistol, he was able to fire first. If this was true, appellant was the aggressor, and it would be manifest that he had no right to pursue and shoot at the deceased- if the facts were as contended by the state. If, however, they were as contended by the appellant, namely, that the deceased was the aggressor, and drew his pistol and fired twice at the appellant, and then retreated, still having his pistol in his possession and in a threatening attitude, and later fired twice at the appellant, it is believed that the issue suggested by the charge was one upon which the court should have instructed the jury. If, in the exercise of a right of self-defense, it becomes necessary that one assailed pursue his adversary,' he may lawfully do so as long as, for the protection of his own life, the necessity continues. See West v. State, 2 Tex. App. 476: Walton v. State, 34 Tex. Cr. R. 92, 29 S. W. 273; Stanley v. State (Tex. Cr. App.) 44 S. W. 519; Johnson v. State (Tex. Cr. App.) 50 S. W. 343; Wilson v. State, 46 Tex. Cr. R. 527, 81 S. W. 34; Flewellen v. State, 83 Tex. Cr. R. 568, 204 S. W. 657; Morgan v. State, 43 Tex. Cr. R. 549, 67 S. W. 420. See, also, Branch’s Ann. Tex. P. C. §§ 1967 and 1968.

Upon the record before us, it is believed that the appellant was entitled to have embraced in the charge on self-defense, the law applicable to his right to' pursue, provided he was not the aggressor, and so long as the necessity, viewed from his standpoint, continued.

The motion for rehearing is granted, the affirmance is set aside, the judgment is reversed, and the cause is remanded. 
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