
    PAYNE v. STATE.
    (No. 8354.)
    (Court of Criminal Appeals of Texas.
    May 20, 1925.)
    1. Criminal law <&wkey;62l (I) — It was not error to overrule accused’s motion to hear separate homicide causes according to file number.
    Accused, indicted separately for two homicides, was not injured by clerk’s change of file numbers before docketing either case, and, since courts are not compelled to hear causes in numerical order, it was not error to overrule accused’s motion to hear them in that order.
    2. Criminal law <&wkey;>IO90(7) — Refusal of continuance not reviewed in absence of bill of exceptions.
    Refusal of a continuance not reviewed, in the absence of a bill of exceptions.
    3. Criminal law <&wkey;396(l) — State may pursue inquiry opened by defense, though otherwise objectionable.
    Where, in a homicide case, defense had-asked witness, who was daughter of deceased, whether she knew that her father and two others were expecting trouble with accused, it was proper for the state to ask witness whether her father was expecting trouble.
    4. Homicide &wkey;>338( I) — Testimony as to effect o( shot on deceased held not harmful.
    Witness’ testimony as to effect of shot on deceased was not hurtful, where such effect was a fact and there was no issue made thereof.
    5. Criminal law <&wkey;364(4) — Statement to sheriff, made less than five minutes after shooting, admissible as part of res gestee.
    Accused’s statement to “put two marks on that big gun,” made, when handing over guns to sheriff less than five minutes after shooting, held admissible as part of res gestee.
    6. Homicide <&wkey;166(5) — -Instigation of investigation of deceased’s liquor dealings by accused’s son held inadmissible.
    In homicide prosecution, evidence of accused’s instigation of investigation of one of deceased’s liquor dealings inadmissible.
    7. Homicide <&wkey;339 — Excluding testimony tending only to reduce homicide to manslaughter harmless, where conviction is for manslaughter.
    Accused, convicted of manslaughter, held not harmed by rejection of testimony’which, if permitted, tended only to reduce homicide to manslaughter.
    8. Criminal law <&wkey; 1091 (15) — Matter excepted to must be shown in bill of exceptions itself.
    Each bill of exceptions must stand or fall by its own allegations, and no error is manifested where matters objected to are not shown in bill itself.
    9. Witnesses <&wkey;328, 337(6) — Proof by accused that he had been indicted for perjury and had attempted to show bad memory held competent to affect credibility and test recollection.
    In a murder prosecution, it was competent, to affect accused’s credibility and to test his knowledge and recollection, to prove by him. that he had been indicted for perjury, and that he had applied for continuance in that prosecution, to prove that his memory was bad.
    10. Homicide <&wkey; 189 — Testimony as to prior difficulties and disconnected transactions held inadmissible as to self-defense.
    In a prosecution for homicide, it was reversible error for the court to admit, as bearing on self-defense, testimony pertaining to prior difficulties and occurrence between accused and •brother of one of deceased, and testimony of transactions between accused and other parties wholly disconnected with the homicide in question.
    11. Homicide <&wkey;>276, 282 — Questions of self-defense and degree of homicide held for jury.
    Whether accused’s act in shooting deceased was self-defenfee, or presented issue requiring jury to.reduce act to manslaughter, was to be decided by the jury by consideration of testimony and law given by court.
    Appeal from District Court, Randall County ; Henry S. Bishop, Judge.
    D. E. Payne was convicted of manslaughter, and he appeals.
    Reversed and remanded.
    T. B. Ridgell, of Breckenridge, W. J. Elesher, of Canyon, and E. A. Wicks, of Ralls, for appellant.
    Tom G-arrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   EATTIMORE, J.

From conviction in the district court of Randall county of manslaughter, with punishment fixed at five years, this appeal is brought.

The conviction was for killing one Sweazea, an old man with-whom appellant seems to have had no other grudge or quarrel save that Sweazea was in a car on a former occasion with Dick and Maud Rippey when one or both of the Rippeys shot appellant. If we comprehend the defensive theory in this case, it was that appellant had had much trouble with the Rippeys, and that what might be termed a “feud” existed between him and them, and that deceased was with Maud Rip-pey on the occasion of this homicide, and that after killing Maud Rippey, appellant shot this deceased, claiming that he thought he saw a pistol in his hand. Growing out of the former trouble in which appellant was shot by one or both of the Rippeys, an indictment was returned against them, and also against this deceased, charging them with assault to murder appellant. The case against said parties was coming up for trial, and appellant was in town as a witness in said case. Maud Rippey and deceased, with their attorney, Mr. A. B. Martin, were on the steps of the courthouse at the southeast corner entrance. Appellant seems to have gone around to that entrance and there shot and killed both Maud Rippey and deceased. Mr. Martin, who testified for the state, said that he was sitting very close to Rippey engaged in private conversation with him about the case coming up, and that, deceased was standing near, listening to said conversation; that something attracted his attention, and he looked up, and appellant was standing there with his pistol presented; and that he fired almost instantly killing Rippey, and then turned and shot deceased, who fell dead. Neither Rippey nor deceased had arms of any kind. Rippey made an effort to escape, but was pursued by appellant, who shot him several times. He then went back to where the body of deceased was lying and shot him again.

Appellant was indicted separately for the two homicides. The indictments were received by the clerk, and that for the killing of Rippey was numbered 623, and the one for killing this deceased, numbered 624. Before either case was docketed, the clerk exchanged the numbers. Appellant complains of this fact. One indicted in two eases at the same time, the original file numbers of which are exchanged by the clerk before docketing either case, would not seem to be injured upon no greater showing than of -the fact of the change, and in view of the fact that the courts are not compelled to first call for trial the earliest numbered of several cases against a defendant on the docket, we perceive no error in overruling appellant’s motion to require the court to take up cause 624 before the trial of the instant case. No authorities are cited by appellant.

The refusal of a continuance will not be reviewed in the absence of a bill of exceptions. Hollis v. State, 9 Tex. App. 643.

The question by the state to the daughter of deceased as to whether her father was expecting trouble, was subject to the objection made by appellant but for the fact, stated without objection in the court’s qualification to bill of exceptions No. 3, that before said question was asked appellant had put to said witness the question, “You knew that the Rippeys and your father were expecting trouble with Payne, didn’t you?” The defense having thus opened up the inquiry, the state was within its rights in pursuing it to the extent of asking the question objected to. What we have just said is true of the complaint of the question to .Lint Merritt as set forth in bill of exceptions No. 4.

That a witness trying to describe the effect upon deceased of the fatal shot said, “Well, he just crumpled down just like a dead animal would that was shot through the head,” would not seem to us any such an-swér as could "have a hurtful effect, in view of the fact that deceased was so shot and did fall practically dead immediately. There was no issue made of these facts.

The sheriff was about a block away from the scene of the shooting and ran immediately to the place, reaching it within less than five minutes after the shooting. He met a deputy sheriff escorting appellant, who had a pistol in each hand, both of which he handed to the sheriff with the statement, “Put two marks on that big gun.” Appellant had just shot two men. The statement made by him was res geste and admissible.

We see no theory on which the testimony offered and rejected, as shown by bills of exception Nos. 10 and 11, could be admissible. That a court of inquiry was held, upon complaint of a son of appellant to officers that Maud Rippey was selling, his father whisky, and what was said and, done at the sitting of said court, seems of no materiality to any issue here.

There are no such facts stated in bill of exceptions No. 13 as would manifest any injury in the exclusion of testimony that after a former difficulty with the Rippeys et al., appellant and his family kept lights burning in their home. If -such testimony had been admitted, it could only have shed light on the mental condition of appellant at the time of the homicide and aid in reducing the verdict to manslaughter. The verdict being for that grade of homicide,, evidence tending only to show a disturbed mind, being rejected, would not be hqld erroneous.

The objections set out in bills of exception Nos. 14 -and 16 do not appear to be supported by any facts made to appear in said bills. It is a well-settled proposition that each bill of exceptions must stand or fall by its own allegations, and that unless the matters stated as objections to some action of the court be shown true in the bill itself, such bill will manifest no error.

Appellant was a witness in his own behalf and testified to many material facts. For the dual purpose of affecting his credibility and of testing his knowledge and rec.olleetion, it was competent to prove by him that he had been indicted for perjury, and that he had-made over his objection an application for a continuance in said perjury case for witnesses by whom he expected to prove that his memory was permanently affected and was bad.

We do not set out the testimony of appellant in extenso, but state that the defensive theories raised by his testimony are two, viz., self-defense and that his crime, if any, was no graver than manslaughter. He said that he was at the place of the homicide as a witness in the eases against deceased and Maud Rippey growing out of what is called the “garden shooting,” in which he was shot by Maud and Dick Rippey, who fired from a car driven by Sweazea, deceased herein. Appellant did not testify to the actual or supposed presence of Dick Rippey at the scene of this homicide, and, as far as we can gather from the record, he does not base his right to act either in self-defense, or in the desired reduction of the offense to the grade of manslaughter, nor does he suggest any theory upon which would seem to be predicated any right on his part to prove an extended list of difficulties with, or shootings, etc., by Dick Rippey prior to the said garden shooting, even if, as may later appear, his testimony would make admissible the facts of said garden shooting. For some reason not apparent to us, appellant was permitted to go back of said garden shooting and over a considerable period of time and detail various difficulties had between him and Dick Rippey, who was not a party to the instant shooting, nor shown to be present at the time. Appellant’s contention, as evidenced by his testimony, appears to be that in these various encounters Dick Rippey was the aggressor, and he (appellant) the victim.

At the close of the evidence for the defense, the state introduced Dick Rippey in rebuttal, and he was permitted to cover the same ground and territory showing various encounters between himself and appellant, and the acts and conduct of appellant prior to said garden shooting; said testimony all showing and tending to show that appellant was the aggressor in the encounters with Dick Rippey. Neither in the testimony of appellant nor that of Dick Rippey is it made to appear that Maud Rippey or Sweazea, both of whom wfere killed by appellant in the instant transaction, were present or participants in any of the difficulties or occurrences between appellant and Dick Rippey save, said garden shooting.

Both the state and the appellant having been permitted to go at length into prior difficulties between Dick Rippey and appellant, as above mentioned, the state was then permitted to prove by many witnesses separate and disconnected transactions and incidents in which appellant had assaulted and abused other persons and had been guilty of such course of conduct toward them as to indicate that he was generally a bad and dangerous man; the avowed purpose of the state in such introduction being to show the disposition of appellant and as corroborating Dick Rippey in his claim that appellant was the aggressor in each of the difficulties and encounters between appellant and said Dick Rippey. The actions of the court in permitting Dick Rippey to testify to these separate encounters and transactions which did not involve deceased, and in permitting the state to introduce witnesses as to the transactions had with parties wholly disconnected either with Dick Rippey, Maud Rippey, or deceased, were made the subject of numerous bills of exception. Bills Nos. 23, 23a, 24, 25, 29, and 36 were taken to the cross-examination of appellant relative to said prior transactions with Dick Rippey, and to transactions occurring between appellant and other parties so disconnected. Bills Nos. 34, 37, 38, 39, 40, 41, 42, 42a, 53, 53a, 53b, _53c, 54, and 58 present appellant’s objections to the testimony of various witnesses as to acts, occurrences, and conduct on the part of appellant involving transactions between him and other parties, but which were claimed by the state to have been known to Dick Rippey and to have influenced Dick Rippey in the various encounters had between him and appellant. This character of testimony seems to us to have shed no legitimate light on any issue in this case. We are at a loss to see how the fact that appellant had been shot at or fought by Dick Rippey could have affected his right of self-defense on the instant occasion when Dick Rippey was not present and there was no act, conversation, or anything referring to Dick Rippey or in any wise making any of said prior transactions an element'in this homicide. We think the learned trial judge erred in permitting the appellant to go at length into transactions with Dick Rippey prior to the garden shooting, and then in permitting the state, under guise of rebuttal and of supporting Dick Rippey’s attitude in said inadmissible transactions, to go at length into the same transactions and to prove appellant’s generally dangerous and bad character in the particular cases as corroborating Dick Rippey.

In the event of another trial, it is our belief that under the facts in this record neither the state nor the defendant show themselves entitled to go back of the garden shooting in an investigation of acts or transactions of the various parties.

Appellant’s testimony was in effect that as he entered the courthouse he saw three men on the steps at the southeast entrance, one of whom he took to be a Mr. Marrs, another he perceived to be Maud Rippey, and the third, a man unknown to him. This excludes any belief on the'part of appellant of the presence or participation of Dick Rippey. Appellant said that as he came around the corner Maud Rippey seemed to him to be trying to draw a pistol, and believing that Maud was going to do so, he (appellant) drew'his pistol and shot Rippey. He said that the man he had taken to be Mr. Marrs, but who turned out to be Sweazea, was thought by him to also be in the act of drawing a pistol, and that after shooting Rippey, he turned and shot deceased. Whether this was self-defense, or presented such issues as to require the jury to reduce it to manslaughter, would be issues to be decided by the testimony presented and .the law given by the court. Mr. Martin, for the state, testified that appellant came around the corner, and the first he knew appellant was standing before him with his pistol presented and immediately fired, shooting Maud Rippey, and that he then turned and shot deceased. The testimony of Mr. Martin is set out in a former part of this opinion..

Believing that the learned trial judge committed error in the admission of testimony pertaining to all those matters of prior difficulties and occurrences between Dick Rip-pey and appellant, and in admitting testimony of the transactions occurring between appellant and other parties wholly disconnected with this homicide, and that the admission of such testimony was hurtful to appellant’s case, the judgment-will be reversed and the cause remanded. 
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