
    KING v. STATE.
    (No. 10185.)
    (Court of Criminal Appeals of Texas.
    June 16, 1926.)
    1. Homicide <@=>295 (2)— Conflicting evidence as to whether defendant or deceased made first attack does not raise issue of provocation, justifying instruction.
    Conflicting evidence, in prosecution for murder, as to whether defendant or deceased made first attack does not raise issue of provocation, and it is reversible error to instruct jury thereon.
    2. Homicide <@=>190(7) — Threat of deceased prior to homicide to kill defendant held admissible, though uncommunicated to defendant, to show aggressor.
    In prosecution for murder, evidence that deceased was heard to say in. an angry mood, “I will take a gun and go down and kill the old s. b.,” was held admissible, though uncommuni-cated to defendant, as tending to show which party was aggressor and which fired first shot.
    3. Homicide <§=I57(5)— Parts of testimony by defendant’s wife as to difficulty between defendant’s son and deceased, communicated to defendant, held admissible in prosecution for murder.
    In prosecution for murder, parts of testimony as to difficulty between defendant’s' son and deceased, communicated to defendant prior to homicide, held admissible as bearing on mind of defendant at time of homicide.
    4. Homicide <§=163(1) — 'Testimony by defendant charged with murder as to reason for staying away from family held admissible to rebut state’s testimony that he stayed away because of own conduct.
    Testimony that defendant charged with murder stayed away from wife and family because of conduct of his son held, admissible to rebut state’s testimony that defendant lived away from family because of own conduct.
    5. Criminal law <§^>404(4).
    In prosecution for murder, bloody clothes of deceased held properly admitted in evidence on issue whether bullets entered body of deceased from front or back.
    6. Criminal law <§=^64!(l).
    County attorney filing complaint charging defendant with assault with intent to murder, involving same facts as murder charge, is disqualified under Code Cr. Proe. 1925, art. 32, after resignation, from representing defendant in murder prosecution.
    7. Homicide <®=»330.
    Admission of statement by deceased that he did not see defendant when first shot was fired, which qualification by court of bill of exception shows was admitted as dying, declaration, is presumed to be based on proper predicate.
    •8. Homicide @=»I69(I) — Testimony as to actions of defendant’s wife with deceased, un-communicated to defendant prior to homicide, held properly excluded.
    Testimony, in prosecution for murder, that deceased furnished defendant’s wife with pistol to shoot defendant, and actioná of defendant’s wife with deceased to show criminal intimacy, uncommunicated to defendant prior to homicide. held properly excluded.
    Commissioners’ Decision.
    Appeal from Criminal District - Court, Nueces County; A. W. Cunningham, Judge.
    O. C. King was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    H. G. Hart, of Raymondville, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   BAKER, J.

The appellant was convicted in the district court of Nueces county for the offense of manslaughter, and his punishment assessed at confinement in the penitentiary for five years.

It appears from the record that the appellant was charged by indictment with murdering one J. J. Ellerd, in Willacy county, on the 18th day of July, 1925, by shooting him with a gun, and that the court, of his own motion, changed the venue from Willacy county to . Nueces county. The record discloses that the appellant and his wife had raised a large family of children, consisting principally of boys, most of whom were grown at the time of the homicide; that he and his wife, in the latter part of 1918, had a separation agreement prepared and executed, in which it was stated that they agreed to live separate and apart, and made a division of the property then on hand. The facts show, however, that .they lived together as husband and wife thereafter until some time in 1919, at which time the appellant left his wife and children, and went into business in Southern Texas, but he continued thereafter to visit them at intervals, and he and his wife on some occasions during said times resumed the relationship of husband and wife, until a few months prior to the- filing of divorce proceedings against him by Ms wife, which appears to have been two or three months prior to the homicide. The record further discloses that the deceased was pursuing the occupation of horse racing, and had employed one of the appellant’s minor sons as a rider, and through this employment an acquaintance arose between the deceased and the wife of appellant. Thereafter the deceased moved his horses from Harlingen, Tex., to the premises occupied and owned by appellant’s wife, and established a camp in the lot, built a race track on the premises, and took his meals with appellant’s wife. The record further discloses that on the morning of July 18, 1925, the appellant went to said premises, and inquired of one of his sons the whereabouts of another son by the name of Ira King, and, being informed that the latter would likely be at the beehouse located nearby on said premises, the appellant left the residence and started in that direction. Within a short time thereafter the report of a gun was heard, and the record discloses that the appellant was in a field 30 or 40 yards from the lot and camp of the deceased, and was shooting at and in the direction of the deceased, and that the deceased shot at the appellant. In this shooting the deceased was mortally wounded, and died a few hours thereafter. It was the theory and contention of the state, and evidence was introduced in support thereof, that the appellant, without provocation, fired upon the deceased without the deceased knowing of the presence of appellant. It was the contention of the appellant, and he so testified, •that the deceased fired upon him first, without warning, and that he, in his own self-defense, shot and killed the deceased.

The record is very voluminous, and contains many bills of exception, but the most serious question presented is the appellant’s objection to the court’s charge to the jury on provoking the difficulty. The appellant urgently insists that the evidence in this ease fails to raise the issue of provoking the difficulty, and that the action of the court in submitting this charge to the jury, over appellant’s timely objection, was reversible error. We have carefully read the statement of facts in this case, and fail to find any evidence therein raising this issue, and are forced to the conclusion that the trial court was in error in submitting same to the jury. .The question involved, as shown by the record, was whether it was the deceased or the appellant who made the first attack. The appellant testified that it was the deceased, and the alleged dying declaration oí the deceased was to the effect that it was the appellant. There were no other eyewitnesses to the beginning of the difficulty. Mr. Branch, in his Ann. P. O. § 1955, states:

“If the only question involved is, ‘Who made the first attack?’ the issue of provoking the difficulty is not in the ease” — citing Phillips v. State (Tex. Cr. App.) 36 S. W. 86; Edwards v. State, 60 Tex. Cr. R. 323, 131 S. W. 1078, and many other authorities.

Under the same section it is also stated:

“If the state’s ease is unprovoked homicide and the defendant’s ease a perfect self-defense, the issue of provoking the difficulty is not in the ease” — citing Lockhart v. State, 53 Tex. Cr. R. 595, 111 S. W. 1024.

This author further states:

“It is error to charge on the issue on provoking the difficulty when the testimony does not raise that issue, because it puts the defendant in the wrong, and is a limitation of the right of self-defense” — citing Lockhart v. State, supra, and a great collation of other authorities.

Also see Dugan v. State, 86 Tex. Cr. R. 130, 216 S. W. 161; Carlile v. State, 96 Tex. Cr. R. 37, 255 S. W. 990; Wright v. State, 96 Tex. Cr. R. 471, 258 S. W. 174.

In bill of exception No. 10 complaint is made to the refusal of the court to permit the appellant to show by the witness, Mullins, that prior to the homicide he heard the deceased, in an angry manner, and in referring to the appellant, state: “I will take a gun and go down and kill the old s. b.” This evidence was excluded by the court, upon objection of the state, for the reason that the threats were not shown to have been communicated to the appellant. We think the action of the court in this instance was error, and that the evidence was admissible, although uncommunicated, as tending to show which one of the parties to the difficulty was the aggressor, and bearing on the issue as to which one fired the first shot. See Branch’s-Ann. P. C. § 2079, citing Pitts v. State, 29 Tex. App. 380, 16 S. W. 189; Pape v. State, 54 Tex. Cr. R. 462, 113 S. W. 759; Bankston v. State, 76 Tex. Cr. R. 504, 175 S. W. 1069, and many other authorities.

In bill No. 12 complaint is made to the refusal of the court to permit the witness, Mrs. Ira King, to testify to a difficulty - between her husband and the deceased, and to statements made in that connection by the appellant’s wife and Tom King, to the effect that Ira King and Ross King should leave the place on account of said difficulty with deceased. This bill discloses that this transaction or at least part of it was communicated to the appellant prior to the alleged homicide. We are of the opinion that such parts of this difficulty brought to the notice of the appellant were admissible and should have gone to the jury-as bearing on the mind of the appellant at the time of the homicide.

Bill No. 16 complains of the refusal.of the court to permit the appellant to show that the reason, why he stayed away from his wife and family was on account 6f the conduct and treatment of his son, Tom, towards him, and that it was not by reason of his own misconduct. We think this testimony was admissible in rebuttal of the state’s theory and testimony introduced before the jury tending to show that the reason why appellant lived away from his family was on account of his own conduct.

The appellant also complains of the acr tion of the court in permitting the state to introduce in'evidence the clothes worn by the deceased ■ at the time of the homicide; the objection raised being that same were bloody, and that their introduction in evidence was prejudicial to the rights of the appellant. We think the court properly admitted this testimony, as there was a sharp issue drawn between the state and the appellant as to whether the bullets entered the body of the deceased from the front or the back. Cole v. State, 45 Tex. Cr. R. 225, 75 S. W. 527; Trigg v. State, 99 Tex. Cr. R. 376, 269 S. W. 782.

Bills of exception Nos. 1, 2, and 4 complain of the action of the court, upon motion of the state, in refusing to permit Hon. J. P. Cogdell to appear as attorney in behalf of the appellant, or to allow him to assist' appellant in selecting the jury in the case. The record discloses that on the date- of the homicide, and prior thereto, said attorney was county attorney of Willacy county, the scene of the homicide, and filled but the complaint charging the appellant with assault with intent to murder, involving the same facts as the murder charge, which was filed in the examining court, and’ that thereafter he tendered his resignation to the commissioners’ court, which was accepted. The record further discloses that the filling out of said complaint was all that said attorney did'in the1 way of' representing the state in this case. Article 32, 1925 C. O. P., states:

■ ■ “District and county attorneys shall not-.be of counsel adversely to the state in any case, in any court, nor shall they, after they cease to be such officers, be of counsel adversely to the state in any case in which they have been of' counsel for the state.” -

We think this article clearly disqualified the said attorney from representing the appellant, and there was no error in the court’s action in so holding.

Bills 5 and 6 complain of the action' of the’ court in permitting the witness Dr. Mc-Cann to testify to statements made by the deceased to the effect that he did not see the appellant when the first shot was fired,' üiid that he could not see after he was shot in the neck. The objection raised to this testimony was that such statements were not part1 of the res gestae. .The court’.s qualification shows that they were admitted as dying declarations. This bill is not very explicit, but this qualification of the court, while it does not state that such statements of the deceased were made after he was conscious of approaching death, forces us to presume that the court’s action in admitting this testimony was correct, and that same was based upon a proper predicate.

There are many other bills of exception complaining of the action of the court in refusing to permit the appellant to show that his wife had a pistol which, according to her statement, had been furnished her by the deceased for the purpose of shooting the appellant, and also to show other acts of the appellant’s wife with the deceased tending to show criminal intimacy, but, in the absence of a showing that these matters had been brought to the attention of the appellant pri- or to the homicide, we are of the opinion that there was no error in the ruling of the court thereon.

For the errors above mentioned, we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

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. 
      <ÉS=For other oases see-same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
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