
    FOX v. STATE.
    (Court of Criminal Appeals of Texas.
    March 12, 1913.
    On Motion for Rehearing, June 25, 1913.)
    1. Criminal Law (§ 595) — Continuance-Absent Witness.
    An application for a continuance to procure an absent witness was properly refused, where the expected testimony would have been immaterial.
    [Ed. Note. — For other cases, see Criminal Law. Cent. Dig. §§ 1311, 1323 — 1327; Dec. Dig. § 595.]
    2. Homicide (§ 181) — Admission oe Evidence — Manslaughter.
    Where, in a prosecution for homicide, accused sought to reduce the killing to manslaughter on the ground of provocation by remarks affecting the chastity of his wife, the state could show that the general reputation of accused’s wife for chastity was bad in her community.
    [Ed. Note. — For other eases, see Homicide, Cent. Dig. §§ 383-385; Dec. Dig. § 181.]
    3. Homicide (§ 49) — Manslaughter—Adequate Cause oe Passion.
    To make remarks imputing unchastity to a female relative adequate cause to reduce a killing to manslaughter, they must have produced anger in accused.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 73; Dec. Dig. § 49.]
    4. Witnesses (§ 330) — Cross-Examination —Impeachment.
    Where witnesses had testified that they knew accused’s reputation for truth to be good, the state could show, on cross-examination, that such witnesses had heard that accused had testified in a trial that he had been on a certain train and witnessed a certain accident, and that three men who were on the train swore that accused was not there.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1106-1108; Dec. Dig. § 330.]
    5. Witnesses (§ 240) — Leading Questions.
    The state should not, as a rule, be permitted to ask leading questions.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 795, 837-839, 841-845; Dec. Dig. § 240.]
    6. Witnesses (§ 268) — Cross-Examination.
    A witness, who had testified in a homicide case that a person, who stood near a church where it was claimed powder marks were found, could not fire a gun so as to hit a post in which bullets were found, was asked on cross-examination whether it was infrequent for the course of some stray bullet to take an angle that was unaccounted for, and answered that usually several stray shots go a considerable distance from the main body of the shot, and get a further distance, the further out the line they go. Held, that the question was proper cross-examination.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 931-948, 959; Dec. Dig. § 268.]
    7. Homicide (§ 112) — Sele-Deeense.
    If accused was informed that decedent had said that he had pulled another out of accused’s wife’s bed, the fact that he then armed himself and went to search for decedent, with the intention of demanding an explanation or retraction, would not deprive accused of his right of self-defense.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 145-150; Dec. Dig. '§ 112.]
    8. Criminal Law (§ 829) — Instructions— Requests — Sele-Deeense.
    Where the court fully instructed on self-defense, and charged that, viewing _ the circumstances from accused’s viewpoint, if it reasonably appeared to him that he was in danger of losing his life, or suffering serious bodily injury when he did the killing, he should be acquitted, it was not necessary to give a requested charge that the fact that, upon hearing of remarks by decedent, charging that accused’s wife was unchaste, he armed himself and went in search of decedent, with the intention of demanding an explanation or retraction of such remarks, would not deprive him of his right of self-defense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2911; Dec. Dig. § 829.]
    9. Criminal Law (§ 823) — Instructions— Sele-Deeen.se.
    The court instructed that a reasonable apprehension of death or serious bodily harm would excuse one in using all necessary means to protect his life or person,' and it was not necessary that there be actual danger, provided he acted upon a reasonable apprehension of danger, so that if at the time of killing decedent the latter by his conduct caused accused to have a reasonable expectation or fear of death or serious bodily harm, and accused, killed decedent acting under such reasonable expectation or fear of death or injury, the'jury should acquit, and further charged that it was not necessary that there should be any real danger, but only that accused have a reasonable expectation or fear of death or serious bodily injury, and as to whether he had reasonable grounds to fear that he was in danger of death or serious bodily injury, or of believing . that decedent was about to execute a threat involving, as a probable result, the infliction of 'serious harm, the particular circumstances must be looked to, and if decedent had threatened to kill accused, or to do him serious bodily harm, and manifested an intention to execute such threats, and accused had reason to believe that he was about to do so, they should acquit. Held, that the instructions were not erroneous as limiting the right to defend in case of actual attack, or in case of a fear or expectation of death alone, and not of serious bodily harm.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1992-1995, 3158; Dec. Dig. § 823.]
    10. Criminal Law (§ 778) — Instructions— Presumptions.
    Where accused testified in a homicide ease that decedent got his pistol from his pocket and dropped it, the court properly charged on the presumption arising from the use of a deadly weapon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1846-1852, 1854^-1857, 1960, 1967; Dec. Dig. § 778.]
    Appeal from District Court, McLennan County; C. M. Smithdeal, Judge.
    Jim Fox was convicted of manslaughter, and appeals.
    Affirmed.
    C. F. Greenwood, of Dallas, and Morrow & Morrow, of Hillsboro, for appellant. Wear & Frazier, of Hillsboro, and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant, under an indictment charging Mm with murder, was convicted of manslaughter, and his punishment assessed at five years’ confinement in the state penitentiary.

Appellant complains of the action of the court in overruling his application for a continuance on account of the absence of Mrs. N. B. Sturdevant, by whom he stated he expected to prove that on the night Mr. Glasgow was killed she was unwell, and called Dr. Menafee between 12:30 • and 1 o’clock that night, and he was at home. If the killing had taken place at or near that hour, under the allegations, this evidence might be material, considering the arguments made in the case, but as it is shown that the homicide took place between 3 and 3:30 o’clock in the morning, the testimony of Mrs. Sturdevant would not tend to show Dr. Menafee’s whereabouts at the latter hour; and, as his residence was but a short distance from the homicide, and he could easily, if he had desired to do so, have left his home as late as 2:30 o’clock and arrived at the scene of the homicide before it took place, there was no error in overruling the application for continuance. Nor in refusing the special charges requested in regard to this matter. It was perfectly legitimate for the state’s attorneys to argue, under the evidence in this case, that in their opinion the deceased was waylaid, and more than one person participated in the killing, and the testimony of Mrs. Sturdevant as to the whereabouts of Dr. Menafee, two hours prior to the homicide, would not and could not have been material on that issue. Piad the absent witness proposed to testify that she knew his whereabouts from 3 to 3:30 o'clock, it might be material; but, as she does not pretend to know his whereabouts after 1 o’clock, the evidence would be wholly immaterial.

The second bill of exception, as approved by the court, presents no error, as the court states the allegations of the bill are wholly incorrect.

The state offered testimony going to show that the general reputation of the wife of accused for virtue and chastity in the community where she lived was bad. This evidence was objected to on the ground “because such testimony was not in harmony with the statute on the subject, and therefore illegal and improper.” The statute referred to, we gather, is the one that reduces an unlawful homicide to the grade of manslaughter when the killing occurs on account of imputing a want of chastity towards a female relative. Appellant testified that he had that night been informed that deceased had been reporting to others that “he had pulled Ted Robinson out of the bed with defendant’s wife,” and on this and similar remarks he sought to reduce the offense to manslaughter, if he was not justified in slaying deceased. This would be adequate cause, but in addition to adequate cause it must be shown that anger, or rage, was occasioned by such a remark; and it was held by this court in Redman v. State, 52 Tex. Cr. R. 596, 108 S. W. 368: “It is unnecessary to cite authorities to support the proposition that the character of a female may be proved as a circumstance to throw light upon whether the appellant believed the language slanderous. Certainly it could not be seriously contended that, if Kittie Caruth had given birth to a child, being an unmarried female, deceased had stated this fact to a party, who informed appellant, her first cousin, and appellant knew the fact to be true, and he had sought out deceased and killed him, these facts alone would not reduce the killing below murder. We are not here discussing the question as to the lack of belief on the part of appellant of the truth of the statement, but to our mind it is absurd to say that one can claim that he killed a party for insult concerning a female relative, when said party knows the language used about said female is true. It is not slander or insult to a female relative, in contemplation of the statute that authorizes the reduction of the homicide to manslaughter, where the appellant knows the statement upon which he acts to be true.” We are not passing on the question of whether or not appellant’s wife was a virtuous woman, but if her general reputation in the community where she lived was that of an unchaste woman, the fact that some one had stated that she was not chaste would not be likely to cause that passion which would reduce the offense to manslaughter, and the evidence was admissible to aid the jury in passing on whether the remark did cause anger, or rage, to such an extent as to render appellant’s mind incapable of cool reflection.

Witnesses testified that they knew appellant, and knew his reputation for truth and veracity to be good. On cross-examination they stated they had never heard his reputation in this respect questioned, and for this reason judged it to be good, when the state was permitted to show that these witnesses had heard that appellant had testified in a trial that he was on a certain train and witnessed a certain accident; that three men who were on the train swore that appellant was not on this train. This was a legitimate cross-examination; the witness having stated he had never heard his veracity questioned.

T. H. Jackson was a witness for defendant, and on cross-examination some leading questions were asked the witness on matters not elicited by defendant, when state’s counsel sought to develop by the witness evidence in support of the state’s ease. The state should not have been permitted to ask leading questions in this instance; but, as the evidence adduced was admissible and. was not of a very material character, it is not such an error as would call for a reversal of the case. The defense had Mr. Jackson to testify that a person who ■ stood near the church, where it was claimed powder marks were found, could not fire a gun, and hit a post in which bullets were found imbedded. On cross-examination he testified: “Q. It is not infrequent, is it, Mr. Jackson, in shooting a shotgun for the course of some stray bullet, so to speak, to take an angle or course that is unaccounted for? A. I think not. My experience has always been that there are usually several stray shots that go a considerable distance from the main body of the shot. Q. And get a further distance, the further out the line they go? A. Yes, sir.” This was legitimate cross-examination, and the court did not err in admitting the testimony.

The defendant, while testifying, had stated that he, at Mrs. Dean’s request, had signed a bond for her son, and secured the signatures of two other persons; that he had presented it to deceased, who was then deputy sheriff, for approval, and that deceased had refused to approve it, at the time using abusive epithets in regard to appellant, and introduced this testimony to show the ill will of deceased toward appellant. On cross-examination the state was permitted to show by the witness that the persons whose signatures appeared on the bond owned no property subject to execution, and that this occurred prior to appellant receiving the money he did receive from a railroad on account of a damage suit. If appellant sought to show the ill will of deceased towards him by reason of the fact that deceased refused to approve this bond, it seems to us permissible for the state to show that those who signed the bond had no property subject to execution, and present their theory that this was, perhaps, the reason deceased refused to approve the bond.

The evidence would show, and defendant testified, that he was informed on the night of the fatal encounter that deceased had said he (deceased) had pulled Ted Robinson out of defendant’s wife’s bed; that he then went and bought shells, got his gun, and went in search of deceased. He further testified that he was hunting for him to demand an explanation of the remark; if, when he approached deceased, he had given an explanation, he would not have killed him; but, when he approached deceased, deceased gave him no opportunity to ask for and demand an explanation, but reached for his pistol, when he (appellant) shot and killed him.

Appellant asked the court to instruct the jury that if appellant was so informed, and did arm himself and go in search of deceased with the intention of demanding an explanation or retraction of the remarks, such action would not deprive him of his right of self-defense. This is undoubtedly the law in this state, but where the. court gives a full and fair charge on self-defense, without any limitation, is it required to give such a charge as was requested? If the court had charged on provoking a difficulty, or presented imperfect self-defense, or in any way restricted or limited appellant’s right against real or apparent danger, this charge should, perhaps, have been given.

But inasmuch as the court instructed the jury that, viewing the circumstances from appellant’s standpoint, if it reasonably appeared to him that he was in danger of losing his life, or suffering serious bodily injury, he should be acquitted, it was unnecessary to give this additional charge. In the case of Williford v. State, 38 Tex. Cr. R. 395, 42 S. W. 972, this court held that on a trial for murder, where the court gave a full charge upon the law of self-defense, unlimited and unabridged by any other charge, it is not reversible error to refuse an instruction, asked by defendant, upon the theory of his right to arm himself and seek deceased to demand an explanation. In the Shannon Case, 35 Tex. Cr. R. 2, 28 S. W. 687, 60 Am. St. Rep. 17, cited by appellant, it is held that where the issue of who provoked the difficulty is raised, this character of charge should have been given. In the Newman Case, 69 S. W. 520, cited by appellant, it is also said that-the court should have submitted the issue of provoking the difficulty, and the converse of that proposition, and in so doing should have instructed the jury that if Newman did not provoke the difficulty, the fact that he had armed himself would not abridge his perfect right of self-defense. The other cases cited by appellant but reiterate this rule of law, and that is that, if the court submits the issue of provoking the difficulty, or in any way limits appellant’s right of self-defense, .then it would be error to refuse to so charge at appellant’s request, but in the event the court submits the issue of self-defense, without any limitation being placed thereon, and aptly applies the law to the facts in the ease, the failure to so charge presents no error. The court on the issue of self-defense instructed the jury; “Every person is permitted by law to defend himself against any unlawful attack reasonably threatening injury to his person, and is justified in using all necessary and reasonable force to defend himself. You are further instructed that a reasonable apprehension of death' or serious bodily harm will excuse a party in using all necessary means to protect his life or person, and it is not necessary that there should be actual danger, provided he acted upon a reasonable apprehension of danger as it appeared to him from his standpoint at the time, and in such ease the party acting upon such apparent danger is in no event bound to retreat in order to avoid the necessity of killing his assailant, and a killing under such circumstances would not be an unlawful killing. If, therefore, you believe that the defendant killed the deceased, Erank Glasgow, but further believe that at the time of so doing the deceased by his acts and conduct, or either, caused the defendant to have a reasonable expectation or fear of death or serious bodily injury, and that, acting under such reasonable expectation or fear of death or injury, the defendant killed the deceased, or if you have a reasonable doubt as to said matters, then you should acquit him, and so say by your verdict. And in this connection you are charged that it is not necessary that there should be any real danger in order to entitle the defendant to a verdict of not guilty, but it is only necessary that, viewing the matter from his standpoint, and from his standpoint alone, the acts and conduct, or either, of the deceased at the time caused the defendant to have a reasonable expectation or fear of death or serious bodily injury, and that the defendant acted at the time under such reasonable expectation or fear. When a homicide takes place to prevent murder or other bodily injury, if the weapon or means used by the party attempting or committing such murder or other bodily injury are such as would have been calculated to produce that result, it is to be presumed that the person so using them designed to inflict the injury. Therefore, if the deceased made an attack upon defendant with a pistol at or just before the time defendant shot the deceased, if he did shoot him, it will be presumed that the deceased intended to injure the defendant. When a defendant is accused of and is on trial for murder, and seeks to justify himself on the ground of threats against the defendant, the law permits him to introduce evidence of threats made, but also provides that same shall not be regarded as affording a justification for the offense, unless it be shown that at the time of the homicide the deceased did, by some act then dope, manifest an intention to execute the threat so made. As to whether the defendant had reasonable grounds to fear an attack by the deceased, or reasonable grounds to fear that he was in danger of death or of suffering serious bodily injury, or of fearing or believing that the deceased was about to execute a threat involving, ás a probable result, the infliction of serious bodily harm, the facts and circumstances attending the difficulty and the situation of the parties must be looked at, and the question determined from the standpoint of the defendant alone. In this connection you are charged that if you believe from the evidence that the deceased, Erank Glasgow, had threatened to kill the defendant, or do him serious bodily harm (and as to whether he had done so is a question for you to determine), and that at the time the defendant shot the deceased, if he did, the said deceased by his acts and conduct, or either, manifested an intention to put the threats so made, if any were made, into execution, and that the defendant believed, or had reason to believe, that the deceased was about to put such threat into execution, or if you have a reasonable doubt as to said matters, then you will acquit the defendant.”

The issue of self-defense was made by the testimony of defendant, and he says, as he approached deceased and spoke to him, that deceased reached for a pistol, and he heard it drop on the ground, and at this time he fired and killed him. He also testified as to threats that had been communicated to him, and under this evidence we think the charge above quoted fully presented every issue raised by the testimony. To select one sentence in the charge, and complain in one instance that the court limited the right to defend to an actual attack, is hardly presenting the matter fairly, for if we read the charge as a whole, no such construction could be given to the charge on self-defense. In another instance it is claimed that the charge limited the right to defend to a “fear or expectation of death,” when the law allows one to act as well from a fear of serious bodily injury. Again, we would say if you would pick out one isolated sentence, the charge might be subject to this criticism, but as a whole it aptly and correctly tells the jury that, in order to justify defendant in killing deceased, it “was only necessary, viewing the matter from his standpoint, that the acts and conduct of deceased, or either of them, caused him to have a reasonable expectation or fear of death or serious bodily injury.”

As defendant testified deceased not only reached for his pistol, but got it and dropped it, the court did not err in charging on presumption from the use of a weapon, and the charge is drawn in such a way that no jury could have been misled.

The other complaints of the charge are, we think, also without merit, and present no matter which would call for a reversal of the case. In some instances it may have been inaptly worded, but it presents the law in a way that fairly presented each issue to the jury for their determination.

Those complaints in the motion in regard to the organization of the jury cannot be reviewed, as no bill of exceptions was reserved.

Judgment affirmed.

On Motion for Rehearing.

Appellant insists that the court was in error in holding that the trial court did not err in overruling the application for a continuance. Let us see the facts he states he expects to prove by this witness. The application states “that all the testimony will show that the killing took place between 3 :20 and 3:30 o’clock; that Mrs. N. B. Sturdevant called Dr. Menafee between 12 and 1 o’clock that night, and he was at home at that hour.” If she should so testify, this would not tend to show where he was at 3:20 o’clock, and as the place where deceased was killed was only a short distance from Dr. Menafee’s residence, he could have been at home at 1 o’clock and at the scene of the killing at 3 o’clock. However, the state offered no testimony that Dr. Menafee was present at the scene of the killing.

It is contended that the court in his charge limited appellant’s right of self-defense to an •‘actual attack.” The charge is copied in the original opinion, and by reading it it will be seen that this contention is without merit, and under such circumstances the authorities cited by appellant have no application. If in fact the charge had so limited appellant’s right, then his contention could be of weight.

All the other questions raised were fully discussed in the original opinion, and we do not deem it necessary to do so again. However, we will add that when a person on trial relies on insult to his female relative to reduce an offense to manslaughter, it is statutory that the state may put in evidence proof of the general character of the female alleged to have been insulted. Article 1134, Penal Code.

The motion for rehearing is overruled.  